Golden Rule Reasoning, Moral Judgement and Law
Neil Duxbury
Abstract
This article examines ‘Golden Rule reasoning’ – reasoning according to the principle that we
should treat others as we would have them treat us – as a basis for moral action and as a
criterion for assessing the moral quality and implications of laws. After distinguishing the
Golden Rule from other ideas and principles with which it is sometimes associated, I embark
upon a defence of the Golden Rule as a principle of fairness. The main approach to
defending this principle has been to detach Golden Rule-based behaviour from the desires
of agents and recipients. The purpose of adopting this approach is to avoid reducing the
Golden Rule to the proposition that we are entitled to impose on others preferences that we
would happily have imposed on us. I examine various attempts to show that the Golden
Rule requires that agents do not simply project their values and desires onto others and I
argue that the most successful of these is R. M. Hare’s explanation of Golden Rule reasoning
in universal prescriptivist terms. Although the universal prescriptivist explanation is open to
various criticisms – as becomes obvious when it is applied to particular moral problems such
euthanasia and abortion – it nevertheless provides a strong philosophical basis for claiming
not only that Golden Rule reasoning need not be connected to particular tastes and
preferences but also that, as a matter of moral principle, we should never tolerate double
standards where cases are relevantly similar. While I accept and try demonstrate the merits of
interpreting the Golden Rule in universal prescriptivist terms, however, I conclude that a
more robust interpretation of the Rule is one which is advanced by some natural law
philosophers and which has it that doing to others as one would have done to oneself is
necessarily a case of doing good towards others. The article ends with some reflections on
the implications this version of Golden Rule reasoning for legal policy-making, and in
particular for the abortion debate.
1
Golden Rule Reasoning, Moral Judgement and Law
Neil Duxbury*
Sometimes, we try to transmit wisdom by formulating simple ‘rules’ which we think others
will do well to heed. These rules we occasionally refer to as ‘golden’, to emphasize that if we
start with these rules and stick to them in some particular activity, what we desire should be
attained and what we do not desire avoided. Books abound offering ‘golden rules’ of selfimprovement – how to thrive at myriad tasks, pastimes, projects and so on – and at one time
or another most of us will either give or receive golden-rule advice. My own favourite
examples, qua recipient, are supposed golden rules of wallpaper-hanging (less paste, more
speed) and freestyle swimming (choose the path of most resistance).
Such examples typify golden rules: they are efforts to provide general guidance,
efforts which are often lacking in subtlety and easily contradicted, rules only in so far as they
are rules of thumb. Whether formulating or being told of golden rules we usually recognize
them, or are foolish if we do not recognize them, for what they are: pieces of advice which,
though very likely memorable and possibly valuable, are not indispensable or capable of
taking the place of endeavour and engagement. To apply this characterization to the golden
rule most familiar to lawyers would be somewhat uncharitable. That ordinary words in
statutes should be given their ordinary meanings (and technical words their technical
meanings) unless absurdity would result is not described as a ‘golden rule’ for nothing: if it
were unreasonable to presume that courts will take words to have the meanings attributed to
them in normal usage, it would be impossible for lawyers and others confidently to advise
and act on the statutes that concern them. Yet, as every lawyer knows, this golden rule is not
the only legitimate criterion for interpreting statutes and, in any event, where serious doubt
as to the appropriate construction of a statute exists, courts are in effect making a judgement
*
Law Department, London School of Economics.
2
rather than determining which rule, or combination of rules, does the legislation the most
justice.1 Law’s golden rule, like other purported golden rules, has value; that a rule’s value
makes its designation as ‘golden’ comprehensible, however, does not mean that the
designation must be accurate. Golden rules are invariably fakes.
But there is one Golden Rule, complete with capital letters, which is commonly
considered the genuine article. This is the prescription – sometimes phrased as a
proscription – to do unto others as we would have them do unto us. Just when this
stipulation was first described as a Golden Rule is unclear,2 though references to the basic
moral sentiment can be traced back long before Christianity.3 It is perhaps rash to claim that
the Rule is ‘[t]he only standard of duty common to all people’.4 But it is certainly recognized
in all cultures, and numerous studies show that it has been endorsed in all of the major and
most minor religions.5 Although there will be reason in this study to refer occasionally to
particular religious formulations of the Golden Rule, there is no need (and anyway I lack the
competence) to examine it as a feature of different traditions and faiths.
Nor is there much to be gained from simply identifying instances where the Rule
features in law. Dig deep enough, and such instances can certainly be found. Courts have
appealed to the Golden Rule as, among other things, a benchmark of good advocacy and
legal probity,6 a principle of judicial (and inter-jurisdictional) comity,7 a means of determining
‘Under the Courts (Emergency Powers) Act 1939, the court, be it the master or the judge, is really put very
much in the position of a Cadi under the palm tree. There are no principles on which he is directed to act. He
has to do the best he can in the circumstances, having no rules of law to guide him’. Metropolitan Properties Co.
Ltd v Purdy [1940] 1 All E.R. 188, 191 per Goddard L.J.
2 Edward Gibbon’s casual use of the designation in The History of the Decline and Fall of the Roman Empire. Vol. 10,
ed. J.B. Bury (New York: de Fau and Co., 1906 [1776]), 23 n 43 – ‘Calvin violated the golden rule of doing as
he would be done by’ – suggests that it was in common use by the mid-eighteenth century. The earliest
example I know of its use in English is Benjamin Camfield, A Profitable Inquiry into That Comprehensive Rule of
Righteousness: Do as You would be Done By (London: printed by A.C. for H. Eversden, 1671), 212-3. Philippidis
shows that in Germany the equivalent ‘Goldene Regel’ was in use by the end of the sixteenth century: Leonidas
Philippidis, Die ‘Goldene Regel’: religionsgeschichtlich untersucht (Leipzig: Klein, 1929), 11-15. John Mayo, The Universal
Principle (London: printed for John Smithwicke, 1630), 11 observes that the principle was one of the ‘golden
decrees’ of twelfth-century ecclesiastical law.
3 See J. O. Hertzler, ‘On Golden Rules’ (1934) 44 Int. J. Ethics 418, 419-23.
4 John Bigelow, Toleration and other essays and studies (New York: Books for Libraries Press, 1927), 72.
5 The most detailed of these studies are Jeffrey Wattles, The Golden Rule (New York: Oxford UP, 1996), 15-67;
H. T. D. Rost, The Golden Rule: A Universal Ethic (Oxford: Ronald, 1986); and Philippidis, Die ‘Goldene Regel’,
above n 2.
6 See, e.g., Acushnet Co. v Birdie Golf Ball Co., 166 F.R.D. 42, 43 (S.D. Fla. 1996); Barnard v Yates, 10 S.C.L. 142,
145 (1818); Williams v Lane, 96 F.R.D. 383, 388 (N. D. Ill. 1982); also John Finnis, ‘Commensuration and Public
Reason’, in Incommensurability, Incomparability, and Practical Reason (Cambridge, Mass.: Harvard UP, 1997), 215-233
at 229-30.
1
3
whether a claimant deserves an equitable remedy,8 a rationale for limiting certain forms of
speech and expression9 and for the judicial review of legislative action,10 and as the basis for
principles of equitable fair dealing,11 restitution for unjust enrichment,12 general trusteeship,13
proprietary estoppel,14 specific performance (compelling the defendant to do unto the
claimant as he would have had the claimant do to him had their positions been reversed),15
and the duty of care in negligence.16 Various writers have argued that Rule provides a
rationale for laws of armed conflict (such as those concerning the treatment of prisoners of
war), for nations respecting mutual treaty agreements and one another’s rights to
independence, but also for humanitarian intervention and other forms of rescue.17 Some
See, e.g., Re Westinghouse [1978] AC 547, 560, per Lord Denning (‘Such is the request made by United States
Federal Court. It is our duty and our pleasure to do all we can to assist that court, just as we would expect the
United States court to help us in like circumstances. “Do unto others as you would be done by”’); Lord v
Cannon, 75 Ga. 300, 305 (1885) (Hall J.: ‘Some comity is doubtless due to the decisions of other courts, and
some presumptions must be made in favor of their correctness. We should dislike to have any other rule
applied to the jurisdiction of our own courts, and should feel bound to resist encroachments upon it, come
from what quarter they might, and, therefore, we should be careful to do unto others what we would have
them to do unto us’).
8 See, e.g, City of Tampa v Colgan, 111 Fla. 538, 545-6 (1933) (Buford J.: ‘[I]n equity the defendant must do unto
others even as he would have others do unto him, and it is no more equitable that he should escape the entire
burden than it is that he should be made to bear more than his proportion of the burden. When one prays
relief in equity, whether as complainant or defendant, he must do as well as demand equity’).
9 See, e.g., Murphy v Zoning Commission of Town of New Milford, 148 F.Supp.2d 173, 191 (D. Conn. 2001).
10 See, e.g., State ex rel. Hodde v Superior Court of Thurston County, 40 Wash.2d 502, 510; 244 P.2d 668, 672 (1952);
also Mosqueda v Cheyenne-Arapaho Election Bd., 5 Okla. Trib. 12, 15 (Chey.-Arap. D.Ct. 1996) (Tah-Bone C.J.:
‘Civil rights are limitations on government action, designed to compel governments (federal, state or tribal) to
adhere to the Golden Rule: Do unto others as you would have them do unto you’).
11 See, e.g., Urie v Johnston, 3 Pen. & W. 212 (1831).
12 See, e.g., Minter v Dent, 37 S.C.L. 205 (1832); Smith v Mitchell, 6 Ga. 458 (1849); also Sumter Building & Loan
Assoc. v Winn, 23 S.E. 29, 30 (1895) (Pope J. dissenting). But cf. Cook & Nichol, Inc. v Plimsoll Club, 451 F.2d 505,
509 n 12 (5th Cir. 1971) (Brown C.J., distinguishing the Golden Rule and the principle of unjust enrichment).
13 See, e.g., Finley v Exchange Trust Co., 80 P.2d 296, 303 (1938).
14 See, e.g., Kunick v Trout, 85 N.W.2d 438, 448 n 19 (N.D. 1957); Sugg v North Carolina Agricultural Credit Corp.,
196 N.C. 97, 144 S.E. 554, 555 (1928).
15 See, e.g., Mack v Shafer, 135 Cal. 113, 116; 67 P. 40, 41 (1901).
16 See, e.g., Kindt v Kauffman, 57 Cal.App.3d 845, 869; 129 Cal.Rptr. 603, 619 (1976); Hornthal v Norfolk Southern
Railway Co., 82 S.E. 830, 831 (1914); Central of Georgia Railway Co. v Steverson, 3 Ala.App. 313, 317; 57 So. 494,
495 (1911); also Hunter v Ward, 476 F.Supp. 913, 919 n 3 (E.D. Ark. 1979), though cf. Trianon Park Condominium
Assoc. v City of Hialeah, 468 So.2d 912, 927 (Fla. 1985) (Shaw J. dissenting: ‘Violation of the general duty to do
unto others as you would have them do unto you, without more, is not actionable negligence…’); also
Chesapeake & Ohio Railway Co. v Paris’ Adm’r, 111 Va. 41, 68 S.E. 398, 401 (1910) (Keith P.: ‘the party injured by
reasonable care’ has a ‘duty’ to ‘diminish the consequences of the wrong he has suffered, in the interest of the
wrongdoer. This is not merely good law but good morals, and flows from that rule which has the highest
possible sanction, that we should do unto others as we would have others do unto us’).
17 See Erik H. Erikson, Insight and Responsibility: Lectures on the Ethical Implications of Psychoanalytic Insight (New
York: Norton, 1964), 242; Ernest D. Burton, ‘Is the Golden Rule Workable between Nations?’ (1918) 51
Biblical World 131, 136-7; Germain Grisez, The Way of the Lord Jesus. Vol. 2: Living a Christian Life (Quincy, Ill.:
Franciscan Press, 1993), 869, 898, 909; John Finnis, ‘Natural Law and the Re-making of Boundaries’, in States,
7
4
judges have likened the Rule to an equitable principle,18 and for a while it was a key part of
the definition of contractual good faith in the Louisiana Civil Code.19
But the significance of these manifestations of the Golden Rule in law is easily
overestimated. Few of the arguments add up to very much, which may be why we find
hardly any of them advanced in superior courts or by eminent judges. Perhaps the most
obvious deduction to be made from these various pronouncements is that, with a little
imagination, most legal rules and doctrines can be connected to the Golden Rule. The main
study to date of the Golden Rule as a legal principle hardly considers instances where the
Rule has explicitly been adopted as such; rather, it follows in the path of many other analyses
of the Rule and examines it primarily as a principle of moral action.20 This makes perfect
sense, because the significance of Golden Rule reasoning to law rests not so much in how
the Rule has been used as in some of the conclusions lawyers and judges would have to
contend with were they to take the Rule seriously as a moral principle providing reasons for
action.
After offering some preliminary remarks about and setting aside some potential
Nations, and Borders: The Ethics of Making Boundaries, ed. A. Buchanan & M. Moore (Cambridge: Cambridge UP,
2003), 171-8 at 176.
18 See, e.g., In re Curtis-Castle Arbitration, 30 A. 769, 770 (1894); Troll v City of St. Louis, 168 S.W. 167, 176 (1914).
But cf. Williams v Concord Congregational Church, 193 Pa. 120, 124-5; 44 A. 272, 274 (1899) (equity and the Golden
Rule as distinct doctrines leading to the same conclusion).
19 See 16 Louisiana Civil Code (Annotated) (St. Paul, Minn.: West, 1977), art. 1965 (‘The equity intended by this
rule is founded in the Christian principle not to do unto others that which we would not wish others should do
unto us’); also National Safe Corporation v Benedict & Myrick, Inc., 371 So.2d 792, 795 (La. 1979). Art. 1960 of the
French version of the Code (compiled in 1825), of which art. 1965 is a translation, refers to the Golden Rule
not as a Christian principle but as ‘[un] principe religieux’. In 1987, the Louisiana legislature dropped the
reference to the Golden Rule. See American Bank & Trust of Coushatta v FDIC, 49 F.3d 1064, 1067 (5th Cir.
1995).
20 Günther Spendel, ‘Die Goldene Regel als Rechtsprinzip’, in Festschrift für Fritz von Hippel zum 70. Geburtstag,
ed. J. Esser & H. Thieme (Tübingen: Mohr, 1967), 491-516. In so far as Spendel does examine the Golden Rule
as a ‘valid legal principle’ (492) he argues primarily that it is the negative version of the Rule – which he
identifies with the German folk-proverb, ‘Was du nicht willst daß man dir tu’, das füg auch keinem andern zu’
(‘What you don’t want others to do to you, that to others you should not do’) – that has especial legal
significance, because it provides the rationale for legal prohibitions, and particularly for the criminal law. The
argument is echoed in modern Confucian scholarship, where it is sometimes claimed that Confucious
deliberately formulated the Golden Rule negatively so as to discourage harmful behaviour. See, e.g., Robert E.
Allinson, ‘The Confucian Golden Rule: A Negative Formulation’ (1985) 12 Jnl. of Chinese Philosophy 305. There is
certainly no reason to believe that positive formulations of the Golden Rule are somehow morally superior to
negative ones: see George B. King, ‘The “Negative” Golden Rule’ (1928) 8 Jnl. of Religion 268. But equally there
is no reason to accept that the negative version is more relevant to law than the positive version. Positive
injunctions, such as that one should respect property, or that one should tell the truth, just as one would expect
the same from others, are no less reasons for rules – criminal-law and other legal rules – than are negative
injunctions, such as that one should not steal or tell lies, just as one would not want to have one’s property
stolen or be told lies.
5
misinterpretations of the Golden Rule, I shall show how moral and political philosophers
have recognized that basic formulations of it need to be qualified or elaborated if those
formulations are to make moral sense. Although different philosophers provide different
qualifications and elaborations, and although their various attempts at refinement are
inevitably subject to criticisms, some of the resulting arguments in support of the Golden
Rule as a moral principle are remarkably robust. Only when we have considered these
arguments will it make any sense to consider some legal implications of Golden Rule
reasoning. What we will discover – this is no doubt predictable – is that positions taken in
law and positions supported by Golden Rule reasoning sometimes oppose one another. We
would expect, in such instances, that if the Golden Rule is rationally defensible then the legal
positions which it opposes are unsupportable. To reach this conclusion would, I think, be
simplistic. The fact that Golden Rule reasoning demonstrates certain actions to be morally
objectionable or unobjectionable is not in itself a sufficient reason for criminalizing or
legalizing those actions. In due course we will see, for example, that such reasoning has been
employed in an effort to demonstrate that euthanasia is sometimes morally permissible. But
even if Golden Rule reasoning does demonstrate as much, it does not necessarily follow that
euthanasia should be legalized, for there may be prudential reasons against legalization –
fears, for example, about how decriminalizing the practice might increase the likelihood of
abuse or mistakes, or how it might alter our principles concerning how to treat the aged and
the seriously ill.21 My argument is not that the Golden Rule is an unassailable moral principle
which the law ought always to follow – a law which we cannot defend by Golden Rule
reasoning is not necessarily something that ought not to be law – but that, appropriately
interpreted, the Rule provides us with a standard according to which we might usefully test
our intuitions regarding the moral quality and implications of particular legal principles and
initiatives.
1. The Golden Rule: some preliminary observations
The Golden Rule is a routine principle of action. There are occasions when, wishing to do
the right thing but being unsure of the right thing to do, we might usefully ask what we
21
See Philippa Foot, Virtues and Vices and Other Essays in Moral Philosophy (Oxford: Clarendon Press, 2002), 44.
6
would think of our contemplated action if someone else were to act in the same way towards
us. In such instances the Rule usefully serves as an interruptive tactic, like counting to ten to
prevent losing our temper, or as a way of checking our standards (just as, sometimes, we
might, before acting, ask ourselves how we think somebody whose temperament and
judgement we admire and respect would act in the same situation). But most of the time the
Rule is practised unreflectively – the spontaneity of so much social action makes this
inevitable – and when we speak of it, it is because we think it has been breached. When we
do reflect on the Golden Rule, it becomes clear very quickly that it can be formulated, and
therefore understood, in many different ways.22 The interpretive difficulties surrounding the
Rule are evident even if we stick with our formulation of it as ‘do unto others as we would
have them do unto us’. Does ‘do unto’ mean ‘do good unto’? Does ‘others’ mean all others?
(And what are ‘others’?) Are we doing unto others as they would do unto us if we were them,
or if we were us in their shoes? These difficulties will have to be addressed.
Before tackling these difficulties, however, we should address a more basic problem.
Those who analyse the Golden Rule now and again try to explain the concept by showing it
to be an instance of some other phenomenon. Sometimes these efforts are patently
unconvincing. The interest of American sociologists in the Golden Rule, J. O. Hertzler
observed in the mid-1930s, ‘rests primarily upon its efficacy as an agent of social control, and
upon the sociological and social psychological principles involved in its operation.’23 He may
well have been right: theories of social control (as anyone familiar with the history of
sociological jurisprudence and legal realism in the United States knows) were all the rage
around this time, and exceptional would have been those mechanisms, institutions, systems,
conventions and the like which were not, somewhere in the already vast and fast-growing
social-scientific literature, described as instruments of social control.24 If any of Hertzler’s
contemporaries were inclined to describe the Golden Rule thus, however, they would have
been making a mistake. For while choosing to follow the Golden Rule may require selfdiscipline – making a conscious effort to be concerned for others – the Rule itself exerts no
22 One philosopher tried to show in his doctoral dissertation that there are ‘4608 … correct forms of the
golden rule.’ Harry J. Gensler, The Golden Rule (PhD dissertation, University of Michigan Dept of Philosophy,
1977), 83. Nearly two decades later he revised this figure, concluding that there are ‘6,480 good forms’ of the
Rule (as contrasted with a significantly higher number of ‘bad forms … having absurd implications’). Harry J.
Gensler, Formal Ethics (London: Routledge, 1996), 104.
23 Hertzler, ‘On Golden Rules’, 427.
24 See generally Dorothy Ross, The Origins of American Social Science (Cambridge: Cambridge UP, 1991), 219-56,
303-89.
7
social control whatsoever; indeed, as Hertzler remarks, it ‘operates from within the
individual, and results in the voluntary limitation of behavior.’25
The argument that the Golden Rule is an agent of social control concerns not what
the Rule is, but how it functions in social contexts. But how the Rule functions in social
contexts depends upon how the agents using the Rule interpret it, and so efforts to explain it
by reference to usage turn out to be inconclusive. A survey of a class of sixth-graders in an
American public school revealed that most thought it would ‘probably’ be easier consistently
to follow a negatively-formulated Golden Rule as opposed to a positively-formulated one.26
Some thought that ‘others’ in the proposition, ‘Do not do unto others what you would not
want them to do unto you’ does not include enemies. Some thought that it does include
animals.27 There are strong reasons, we will see, for concluding that others must include
enemies and cannot include animals. But these reasons are beside the point, which is that
seeking opinions about how to follow the Golden Rule reveals only that the Rule means
different things to different people. Some argue that living by the Golden Rule is
inconsistent with economic competition because practitioners of the Rule who want to
outwit their business competitors cannot equally want their business competitors to outwit
them.28 Others argue that following the Golden Rule is perfectly consistent with economic
competition because by so doing one fosters good relations both inside and outside one’s
business, so increasing the likelihood of ensuring customer- and employee-loyalty and longterm profitability.29 These and other differences of opinion over the Golden Rule are
Hertzler, ‘On Golden Rules’, 428. Though later in the article he appears to contradict this position: see 432
(‘the positive statement [of the Golden Rule] develops socialized attitudes and behavior patterns…. The
negative statement leads to a functional equilibrium and maintains existing social control’).
26 Ron B. Rembert, ‘The Golden Rule: Two Versions and Two Views’ (1983) 12 Jnl. Moral Educ. 100, 101.
27 See ibid. 100-02.
28 See, e.g., Alice S. Cary, ‘Economic Freedom and the Golden Rule’ (1953) 13 Christianity and Crisis 84; Douglas
F. Anderson, ‘Presbyterians and the Golden Rule: The Christian Socialism of J. E. Scott’ (1989) 67 American
Presbyterians 231, 234; Bruno Brülisauer, ‘Die Goldene Regel. Analyse einer dem Kategorischen Imperativ
verwandten Grundnorm’ (1980) 71 Kant-Studien 325, 331 (arguing that the Golden Rule is hostile to
competition [wettbewerbsfeindlichen]). The argument is wrongheaded: the correct deduction from the Golden Rule
is not that because I like winning I must let my economic adversaries win, but that I will compete against them
just as I would have them compete against me.
29
See, e.g., Arthur Nash, The Golden Rule in Business, 2nd edn (New York: Revell, 1930); J. C. Penney, Fifty Years
with the Golden Rule (New York: Harper & Bros., 1950); W. C. Keirstead, ‘The Golden Rule in Business’ (1923) 3
Jnl of Religion 141; William N. Evans and Ioannis N. Kessides, ‘Living by the “Golden Rule”: Multimarket
Contact in the U.S. Airline Industry’ (1994) 109 Quarterly Jnl of Economics 341 (claiming that airlines which follow
the Golden Rule reduce the likelihood of their competitors engaging in aggressive pricing action); Leo L.
Clarke, Bruce P. Frohnen and Edward C. Lyons, ‘The Practical Soul of Business Ethics: The Corporate
Manager’s Dilemma and the Social Teaching of the Catholic Church’ (2005) 29 Seattle Univ. L. Rev. 139, 164
25
8
interesting; but, beyond telling us that the Rule is subject to various interpretations, they do
not help us to make sense of it as a moral principle.
The Golden Rule is often described as a principle of reciprocity.30 Not all behaviour
motivated by the Golden Rule need entail the ethic of reciprocity. Conserving resources for
future generations is an instance of treating others as we would have them treat us,
notwithstanding that it might be impossible for those others to act reciprocally (though they
may follow our example). It is certainly correct, however, to say that such behaviour can
usually be explained in terms of reciprocity.
Yet not all behaviour motivated by reciprocity will be explicable in terms of, or
consistent with, the Golden Rule. ‘Treat others as you would have them treat you’ is a
different proposition from ‘treat others well so that you might expect the same in return’ –
even though a side-effect of treating others as we would have them treat us may be that they
treat us as (favourably as) we treated them in the event that our roles are reversed. By acting
according to the Golden Rule we will sometimes achieve the same ends as when we agree to
repay favours or engage in other forms of strategically reciprocal action. But treating others
as you would have them treat you is primarily moral rather than strategic action, a choice to
do what seems right rather than what is likely to prove profitable; indeed, by following the
Golden Rule we will sometimes act against the interests of others who would repay our
support because, were the tables turned, we would want to be treated with the same
integrity.
Other efforts to explain the Golden Rule by associating it with particular concepts
need to be treated with similar caution. Although resolving to follow the Golden Rule can
create obligations to assist others, not all Golden Rule-based behaviour can be equated with
good samaritanism, because our treatment of others in accordance with how we would have
them treat us often has nothing to do with the question whether those others are some way
in need or distress. Much of our treatment of others – the courtesies we extend, the
pleasantries we use, much of the advice we give – is based on how we would have others
(‘There are few moral principles more fundamental to American notions of fair play than the Golden Rule:
“Do unto others as you would have them do unto you.” Application of this rule … to typical business
situations may readily lead to behavioral decisions impinging on long-term profit-maximization. Many
managers in the 1950s and 1960s, for example, would not have considered internalizing the cost of water or air
pollution because to do so would have lowered profits. If, however, they had followed the Golden Rule in their
relations with downstream and downwind neighbors, they would have reduced pollution or compensated those
neighbors despite the fact that compensation was not legally required’).
30 See, e.g., Lon L. Fuller, The Morality of Law, rev. edn (New Haven: Yale UP, 1964), 20.
9
treat us irrespective of whether they need, or whether we think they need, this treatment.
Action motivated by the Golden Rule need not be charitable, for if our resolve is to treat
others with the honesty that we would have them show towards us then our honest opinion
might be that others are seeking help unnecessarily, or are seeking more help than they need
and that, were we in their position, we would not consider ourselves deserving of their
charity. Following the Golden Rule does not compel altruistic behaviour, for in fair
competition we consider it reasonable that others do not look out for us or take care of our
interests. Nor is it correct to equate the Golden rule with the principle that one should love
one’s neighbour as oneself. The proposition that I should care for others as I would care for
myself is distinguishable from the proposition that I should care for others as I would have
them care for me. The two principles are very closely connected (the connection is made
explicit in many religious texts) and it would be an inadequate examination of the Golden
Rule that did not take account of this connection. But while it is difficult to envisage
instances in which, by following the Golden Rule, we do not uphold the neighbour-asoneself principle as well, it should be kept in mind from the outset that these two principles
are distinct.
Albrecht Dihle has argued – unconvincingly – that this distinction is especially
evident if we test each principle against the claim that one should love one’s enemies.
According to Dihle, the Golden Rule is a species of ‘repayment thinking’ (Vergeltungsdenken)
which evolved out of the principle of lex talionis – that any action, good or bad, necessarily
calls forth an equivalent reaction – as formulated and practised in ancient Mediterranean
cultures.31 The two principles certainly need not be inconsistent. Soldiers might justify
retaliation against the military actions of their opponents for the reason that they would
expect from their opponents nothing different. But Dihle argues that it is impossible to
incorporate the requirement that one love one’s enemy into the Golden Rule without
contradicting the principle of lex talionis. The requirement can be incorporated into the
neighbour principle, however, by extending the definition of neighbour – as it is extended in,
for example, the parable of the Good Samaritan – beyond the immediate community to
humanity in general (the defence of which will sometimes require retaliatory action).32
31 See Albrecht Dihle, Die Goldene Regel. Eine Einführung in die Geschichte der antiken und frühchristlichen Vulgärethik
(Göttingen: Vandehoek & Ruprecht, 1962), 80-127.
32 See Dihle, Die Goldene Regel, 109-27.
10
Dihle’s effort to distinguish the neighbour principle from the Golden Rule is
unconvincing because it requires that one accepts his basic thesis: that the Golden Rule is
connected to lex talionis. The historical soundness of that thesis has been widely disputed,33
and it is obvious that the two concepts are analytically distinct. Dihle himself notes some
distinctions, such as that following the Golden Rule involves taking account of the
perspectives of at least two parties whereas lex talionis is purely agent-centred, and that
Golden Rule reasoning takes place before rather than after the fact.34 But the distinctions go
deeper than Dihle concedes – so deep, in fact, that it is difficult to see how treating the
Golden Rule and lex talionis as related concepts helps us to understand either. ‘Hit him back
as he hit you’ might sound like the Golden Rule – developmental psychologists have claimed
that in early-stage moral development children often mistake it for such35 – but hitting back
as he hit you is responsive behaviour, whereas treating others not as they treated you but as
you would have them treat you is reflective and non-retaliatory. Indeed, behaviour motivated
by the Golden Rule might be considered opposed to lex talionis: you should not strike him
because you would not have him strike you. 36
Perhaps Dihle’s principal error is to think of the relationship between those who act
and those who are treated according to the Golden Rule as equivalent or symmetrical.
According to Paul Ricoeur, between agent and recipient there will, from the outset, be an
imbalance of power, which Golden Rule-motivated action might or might not even out.
Ricoeur’s own depiction of this relationship is dramatic. Other-directed action involving
‘disesteem’ makes the other into a ‘victim’ or ‘patient’ of his or her action.37 In such
‘dissymmetric situation[s]’ the Golden Rule stands as a corrective, for it ‘establishes the other
in the position of someone to whom an obligation is owed, someone who is counting on me
See, e.g., J. M. Robinson, review of Dihle, Die Goldene Regel (1966) 4 Jnl History of Philosophy 84, 86-7; Adolf
Lutz, ‘Die Goldene Regel’ (1964) 18 Zeitschrift für philosophische Forschung 467; Peder Borgen, ‘Den såkalte gyldne
regel (Matt. 7:12, Luk. 6:31)’ (1966) 9 Norsk teologisk tidsskrift 129, 141-2; Victor P. Furnish, The Love Command in
the New Testament (Nashville: Abingdon, 1972), 57-8 n 107.
34 See Dihle, Die Goldene Regel, 80-2.
35 See, e.g., Jean Piaget, The Moral Judgment of the Child, tr. M. Gabain (Glencoe, Ill.: Free Press, 1948), 322-4;
Lawrence Kohlberg, ‘Justice as Reversibility’, in Philosophy, Politics, and Society 5th ser. ed. P. Laslett & J. Fishkin
(New Haven: Yale UP, 1979), 257-72 at 265-5; T. J. Bachmeyer, ‘The Golden Rule and Developing Moral
Judgment’ (1973) 68 Religious Education 348.
36 For a general exploration of the differences between the concepts, see Werner Wolbert, ‘Die Goldene Regel
und das ius talionis’ (1986) 95 Trierer theologische Zeitschrift 169.
37 Paul Ricoeur, Oneself as Another, trans. K. Blamey (Chicago: University of Chicago Press, 1992 [1990]), 320,
227, 320.
33
11
and making self-constancy a response to this expectation.’38 But how does the Golden Rule
counter disesteem? Why should I act according to the Rule, thereby considering myself
obliged in the way that Ricoeur describes, if the recipient of my action is my enemy?
Ricoeur offers at least three answers. First, Golden Rule reasoning entails
‘reversibility of the roles’,39 and so agents who imagine themselves as their recipients might
discover a capacity for solicitude that would in all probability have eluded them had the
effort to imagine oneself as another not been made.40 There are two objections to this
answer. The first is the obvious point that reversibility cuts both ways: if I say to my son that
were he to imagine himself as the sunbathers on the beach at whom he keeps shooting his
water-pistol then he would know not to do it, he might reply that were the sunbathers to
imagine themselves as him then they would know the opportunity really is too perfect to
resist.41 If we rein in reversibility, as Kurt Baier does,42 limiting it to the proposition that it is
wrong to do to others those things which it would be contrary to reason to want done to us,
we sidestep this reply but at the price of committing ourselves to an unconvincing moral
criterion: after all, there are forms of behaviour which some people find acceptable either as
agent or as recipient but which they should still not be entitled to inflict on others.
Furthermore, if we make the imaginative leap which reversibility requires – leave aside, for
now, the question of just what this might entail – we might not feel any more disposed
towards our recipients than we already do; indeed, imagining our roles reversed might make
us look unfavourably on them (‘were I them, I would never have behaved that way’), as the
stork does after her dinner-date with the fox.43
Ricoeur’s second answer to the question why following the Golden Rule should
militate against the impulse to harm enemies stems from the familiar argument that genuine
respect for oneself demands respect for others and their rights, even when those others are
one’s enemies. The choice to withhold such respect, or act with positive disrespect, impacts
on one’s own self-understanding: my action, whatever impulse it might satisfy, reveals, and
reveals to me, my weakness. ‘I cannot myself have self-esteem unless I esteem others as
Oneself as Another, 268.
Oneself as Another, 330.
40 Oneself as Another, 191-2.
41 This argument – that ‘other-regarding’ behaviour might still be self-centred – is developed specifically as a
critique of Ricoeur’s conception of the Golden Rule in Mark Hunyadi, ‘La règle d’or: l’effet radar’ (1994) 126
Revue de théologie et de philosophie 215.
42 See Kurt Baier, The Moral Point of View (Ithaca: Cornell UP, 1958), 202-3.
43 La Fontaine, Fables, xviii.
38
39
12
myself.’44 Golden Rule reasoning is one of the ways in which we confront this weakness. But
it provides no guarantee that we will not succumb to it. We might conclude not only that the
harm we contemplate inflicting on our enemies is probably much the same as that which
they would inflict upon us but that they, having inflicted that harm, would have little trouble
living with whatever weakness this caused them to see in themselves.
To reach this conclusion, Ricoeur thinks, is to take a position similar to that taken by
Dihle when he argues that lex talionis and the Golden Rule – an eye for an eye and do as you
would be done by – are alike in so far as they are principles of equivalence.45 His third
answer is that the Golden Rule as it appears in the New Testament entails not the ‘logic of
equivalence’ but the ‘logic of superabundance’.46 Crucial to this answer are the words
attributed to Jesus at Luke 6: 32-5: ‘If you love only those who love you…. If you do good
only to those who do good to you…. And if you lend only where you expect to be repaid,
what credit is that to you? Even sinners’ do these things. ‘[Y]ou must love your enemies and
do good; and lend without expecting any return’. These words should be read not as a
rejection of the Golden Rule, Ricoeur argues, but as an effort to emphasize that the Rule is
founded on ‘the economy of the gift’.47 I give to (do unto) others not ‘for the sake of selfinterest’48 (that they would do the same for me), but because I am moved by the generosity
of others – by their example I come to understand the Golden Rule as: ‘because it has been
given to you, go and do likewise’ (parce qu’il t’a été donné, donne aussi à son tour).49 On this
reading of the Golden Rule, we should be solicitous to enemies not because of the fulfilment
or self-integrity that comes from such behaviour but because to treat others as we would
have them treat us is to treat them with no expectation of receiving any benefit, with no
expectation of anything at all, in return.
44 Oneself as Another, 193. Cf. Olivier du Roy, La Réciprocité: Essai de morale fondamentale (Paris: ÉPI, 1970), 44 (‘it is
necessary that happiness consists in happiness willed for others as oneself, in reciprocity itself…. One cannot
will it for oneself without willing for another; this would be literally contradictory. This reciprocity of love,
which is the ultimate requirement and the highest human aspiration, includes infinite demands of truth, selfgiving, receptiveness and openness to others’).
45 Paul Ricoeur, ‘The Golden Rule: Exegetical and Theological Perplexities’ (1990) 36 New Testament Studies 392,
393-4.
46 Ricoeur, ‘The Golden Rule’, 394-5.
47 Ricoeur, ‘The Golden Rule’, 396. A similar line of argument is developed by Alan Kirk, ‘“Love Your
Enemies,” the Golden Rule, and Ancient Reciprocity (Luke 6: 27-35)’ (2003) 122 Jnl of Biblical Literature 667,
673-86.
48 Ricoeur, ‘The Golden Rule’, 395.
49 Paul Ricoeur, ‘Entre philosophie et théologie: la règle d’or en question’ (1989) 69 Revue d’histoire et de philosophie
religieuses 3, 7. See also Josef Fuchs, ‘Die schwierige goldene Regel’ (1991) 209 Stimmen der Zeit 773.
13
It might be objected that Ricoeur’s Golden Rule demands quixotic behaviour. But
the real problem with his version of the Rule is that it does not allow for legitimate
discrimination. Respecting enemies as if they were me – ‘esteeming others as myself’ – may
mean treating them with more respect than they deserve, which is not only a moral mistake
but also likely to encourage more of the behaviour that made them my enemy in the first
place.50 In one of his later works Ricoeur suggested that deliberators in John Rawls’s socalled original position engage in reasoning akin to that required by the Golden Rule,51 and it
is easy to see why he should have reached this conclusion, for agents who follow Ricoeur’s
version of the Golden Rule act as if behind a veil of ignorance as to their recipients’ qualities,
history, motivations, and so on. Rawls’s notion of justice as fairness can certainly be
formulated in terms of the Golden Rule, as we will see later; none the less, the Golden Rule
is better described as a principle of fairness rather than as a principle of justice. The Golden
Rule requires fairness to others – treatment of others modelled on how one would have
them treat oneself. But treatment which is fair in this sense will not always be sufficient to
achieve justice, which embraces other forms of moral action besides the Golden Rule.52 Nor
will such treatment necessarily be equal treatment – though, in so far as the Golden Rule
does permit treating different persons differently, it requires that such treatment be
justified.53 For example, a mother apportioning her estate among her three children might
decide that the fairest way to apportion it is unequally, taking account of, say, desert. The
beneficiary who is to receive a lesser share of the estate might complain that this in fact is
not fair, and might well ask how she would have felt were she a recipient in this precise
position. But her justification might be that her decision entails no inconsistency with the
Golden Rule – that she would expect (which, of course, is not to say that she would
appreciate receiving) the same treatment were she in his position of deserving less than his
siblings did.54
That the Golden Rule is a principle of fairness might not seem obvious. After all,
treating others as we would have them treat us – my removing one of the dentist’s teeth, for
See Rudolf von Jhering, Der Kampf um’s Recht, 2nd edn (Vienna: Manz, 1872).
See Paul Ricoeur, The Just, trans. D. Pellauer (Chicago: University of Chicago Press, 2000 [1995]), 53-4.
52 See Germain Grisez, The Way of the Lord Jesus. Vol. 1: Christian Moral Principles (Chicago: Franciscan Herald
Press, 1983), 212; The Way of the Lord Jesus. Vol. 2, pp.327-9.
53 See John Finnis, ‘Natural Law and Legal Reasoning’, in Natural Law Theory: Contemporary Essays, ed. R. P.
George (Oxford: Clarendon Press, 1992), 134-57 at 137-8, 148-9.
54 The example is taken from Garth Hallett, ‘The “Incommensurability” of Values’ (1987) 28 Heythrop Jnl. 373,
379.
50
51
14
example, just as I had her remove one of mine – does not necessarily mean treating them
fairly. But it is implicit in the Golden Rule that we should treat others as we would have
them treat us in like cases. The dentist’s case and mine are not alike: the dentist has no need
for dental treatment, and I am no dentist. Of course, no two cases are ever exactly alike; but
this does not normally stop us from discerning what the relevant similarities and differences
between cases are (that the dentist is, unlike me, qualified to provide and in no need of
dental treatment is obviously relevant; that the dentist is, unlike me, female is obviously not).
Determining criteria of relevant likeness and difference in any particular instance is certainly
essential if the proposition that we treat like cases alike is not to be an empty one.55 And
even settling on criteria, it has been argued, does not make the problem of emptiness (or
circularity) go away, because all we are saying is that like cases are those cases which our
criteria tell us should be treated alike – that one case is to be treated like another because,
whatever the differences between them, the features they share are rendered significant by
the criteria we have selected.56
For at least two reasons, however, we should be wary of concerns about emptiness.
First, the principle of like treatment can come into play before standards of treatment have
been determined: our sense that, say, two or more persons do or do not differ in any
relevant respect often precedes any consideration of what treatment they should receive.57
Secondly, appropriate criteria of relevant likeness and difference are often easy to settle on
and, even when they are not, we work out methods by which to create and revise them. Lawmaking is an obvious method.58 Law enables the creation of rules and standards which
stipulate how particular classes of persons, property and activities should be treated in
55 See H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Clarendon Press, 1994), 159-60. It is often assumed –
Hart himself makes the assumption (159) – that treating different cases differently must be a logical correlate of
treating like cases alike. But it is possible: (1) that two cases of a certain type, although different, are none the
less alike in enough relevant ways to require their being treated similarly; and (2) that two cases of a certain
type, although different, are none the less alike in enough relevant ways to permit but not require their being
treated similarly. Consider an example offered by Tony Honoré, Making Law Bind: Essays Legal and Philosophical
(Oxford: Clarendon Press, 1987), 201. A rule stating that women are allowed to join a club implies that men are
entitled to join it as of right. It does not follow that men must be treated differently from women and so not
allowed to join. The club’s rule may differentiate between men and women, but the club might still, for
example, want to secure a good mixture of male and female members. Because of the rule, male applicants and
female applicants to the club cannot demand to be treated as if they are alike. But the rule leaves it open to the
club to treat them thus if it so wishes.
56 See Peter Westen, ‘The Empty Idea of Equality’ (1982) 95 Harv. L. Rev. 537.
57 See Kent Greenawalt, ‘How Empty is the Idea of Equality?’ (1983) 83 Columbia L. Rev. 1167, 1170-1.
58 See John Finnis, ‘Natural Law: The Classical Tradition’, in The Oxford Handbook of Jurisprudence and Philosophy of
Law, ed. J. Coleman & S. Shapiro (Oxford: Oxford UP, 2002), 1-60 at 10-11.
15
particular instances – rules and standards which, by one or another technique (distinguishing
precedents being the most obvious), can be modified so that previously submerged or
unrecognized differences between instances are given relevance. The Golden Rule certainly
entails the proposition that like cases should be treated alike and different cases differently,
and this proposition is certainly incomplete until supplemented by criteria of relevant
likeness and difference, but it would be a mistake, I think, to conclude that providing the
necessary supplementation must be an indefensibly circular exercise.
2. Tastes and oppression
The main two arguments I have advanced so far are that it is not a good idea to try to
explain the Golden Rule by reference to concepts with which it shares characteristics (in
particular: reciprocity, altruism and repayment thinking), and that the Rule is a sound
principle of fairness, defensible against the claim that the notion of treating like cases alike is
tautological. One might still be inclined to reject the Golden Rule as a principle of fairness
even if one accepts that it can be defended thus. The reason one might still reject it was well
summarized by Bernard Shaw: ‘Do not do unto others as you would have that they should
do unto you. Their tastes may not be the same.’59 There are things that, because of my likes
and dislikes, I would happily have you do to me which you will probably not want done to
you. But if that is so, it would seem odd to describe as fair a principle which warrants the
imposition of our tastes on others.
Various seventeenth-century writers saw the problem clearly. If the Golden Rule
were simply a matter of acting according to one’s tastes qua recipient, John Goodman
observed, ‘a common drunkard might justifie his indeavour of debauching other men into
that beastly vice, under this pretence, that he doth nothing in that case, but what is content
should be done to himself. And the laviscious person, so he might be allowed to defile his
neighbour’s bed, would perhaps be content another should do as much for him.’60 Why
would we assume that the Golden Rule does not permit such actions? For Goodman, ‘my
obligation from this Rule’ is ‘that I should do … towards him, all that which … I should
Bernard Shaw, ‘Maxims for Revolutionists’, in Man and Superman (London: Penguin, 2004 [1903]), 251.
John Goodman, The Golden Rule, or, the Royal Law of Equity Explained (London: printed by Samual Roycroft
for Robert Clavell, 1688), 22.
59
60
16
think that neighbour of mine bound to do … towards me in the like case’,61 and ‘that is to be
the measure of my expectations from him’.62 But introducing the concept of obligation in
this way does not free us from the problem of tastes: in a specific instance I might think that
if my role and the recipient’s were reversed then I would consider the recipient bound to act
in a particular way, and so take that action myself; but the recipient still might not consider
that action fair or appropriate.
Other writers of the period offered a different answer: that we are disinclined to
impose our tastes on others because we know that it could just as easily be others imposing
their tastes on us. ‘[W]ith what imaginable justice can I do that to him,’ Matthew Hale asked,
‘that I would judge unfit or unjust for him to do to me; or with what pretence of justice, or
congruity, can I judge that which is fit for him to do to me, to be unfit for me to do for
him’?63 The point is echoed by Benjamin Camfield: Golden Rule reasoning demands that we
‘think of our selves in other men, and of others in our selves, a due respect being had to the
several circumstances and distinctions of our qualities and conditions’64 (what Hale calls a
‘transposing of the persons by way fiction or supposition’65). ‘[E]very one is governed by his
own reason’, Hobbes declared, and so ‘it followeth, that in such a condition, every man has a
right to every thing; even to one another’s body.’ But ‘[f]or as long as every man holdeth this
right … are all men in the condition of war’, for ‘if other men will not lay down their right,
as well as he … there is no reason for any one, to divest himself of his’. And so, ‘to dipose
himself to peace’ rather than ‘to expose himself to prey’, it is important that ‘a man … be
contented with so much liberty against other men, as he would allow other men against
himself’, that he accept the ‘law of the Gospel; whatsoever you require that others should do
Goodman, The Golden Rule, 26.
Goodman, The Golden Rule, 30.
63 Sir Matthew Hale, ‘Of Doing as We Would be Done Unto’, in his Works, Moral and Religious, 2 vols ed. T.
Thirlwall (London: Wilks, 1805), I, 377-416 at 381-2. The essay appears not to have been published before
1805: see Edmund Heward, Matthew Hale (London: Hale, 1972), 129.
64 Camfield, A Profitable Inquiry into That Comprehensive Rule of Righteousness, 62. Wattles, The Golden Rule, claims
that Camfield’s book was ‘discovered too late’ to be included in the study (211 n 2). Wattles does, however,
discuss a ‘treatise’ entitled The Comprehensive Rule of Righteousness, Do as You would be Done By, by ‘the Reverend
Father in God William Lord Bishop of St. David’s’, which Wattles states was published by William Leach in
1679 (247). The quotations that Wattles attributes to Bishop William are in fact quotations from Camfield’s
treatise, which, on the unnumbered page preceding p.1, carries an advertisement for a text entitled An Apology
for the Church of England in point of seperation [sic] from it, published by William Leach in 1679, the work of ‘the
Lord Father in God William Lord Bishop of St. David’. Wattles did not discover Camfield’s treatise too late to
include it in his own study – he was working from it all along, but took the name on the advertisement page to
be the name of the author.
65 Hale, ‘Of Doing as we Would be Done Unto’, 386; see also ibid. 405-6.
61
62
17
to you, that do ye to them.’66
This argument – that Golden Rule reasoning urges moderation, because ‘actions are
not so prone to bring about evils when performed in the light of what we would like to have
others do for us’67 – should not be dismissed summarily. The Rule is easily grasped, easily
formulated and requires no special learning or intelligence.68 It helps us, when determining
our actions, to see beyond our own impulses and interests, for it involves not mere
imposition of desire – what I want to do to another – but ascertainment of desire by
reference to what I would have another do to in light of my imagining myself as that other.
‘The result is that the desire at the satisfaction of which my action aims is neither my desire
nor [the other’s], as it existed prior to the application of the Rule, but my desire as seen
through, and modified by, something that unites us, directing my action towards him and
projecting my desires into him.’69
But even though the argument should not be dismissed summarily, it is not
surprising that some contemporaries and near-contemporaries of Hobbes thought the
Golden Rule in need of justification. The claim that the agent’s and the recipient’s desires are
somehow united in the process of Golden Rule reasoning makes light of possible conflict
between the two sets of desires. If I were in your situation, I know how I would treat
someone who is in my current situation. But I also know, and bemoan the fact, that since it
is not me but you in your situation, someone in my situation will be treated very differently
from how I would treat them. How, then, am I to follow the Golden Rule? Am I supposed
to imagine myself as me in your situation? As you in your situation? As an amalgamation of
Hobbes, Leviathan, I. xiv. 4-5 (italics omitted). For a somewhat superficial attempt to lend support to this
thesis and show that throughout history the Golden Rule has been called upon to maintain peace, see Adalbert
Langer, ‘Die Goldene Regel – ein Schlüssel zum Frieden’, in Kirche, Recht und Land, ed. F. Lorenz (Munich:
Sudetendeutschen Priesterwerkes, 1969), 67-74.
67 Paul Weiss, Man’s Freedom (New Haven: Yale UP, 1950), 139. Cf. Paul Weiss, ‘The Golden Rule’ (1941) 38 Jnl
of Philosophy 421, 422 (‘The Golden Rule … incorporates the observation that deeds are more likely to be just
when performed by individuals who assume the standpoint of their patients’).
68 See, e.g., Hobbes, Leviathan, I. xv. 35 (‘laws of nature … contracted into one easy sum, intelligible even to the
meanest capacity …’); George Boraston, The Royal Law, or, The Golden Rule of Justice and Charity … (London:
printed by R. Norton for Walter Kettilby, 1684), 10.
69 A. T. Cadoux, ‘The Implications of the Golden Rule’ (1912) 22 Int. Jnl of Ethics 272, 277. The argument is
rehearsed at length by Philipp Schmitz, ‘Die Goldene Regel – Schüssel zum ethischen Kontext’, in Christlich
glauben und handeln. Fragen einer fundamentalen Moraltheologie in der Diskussion, ed. K. Demmer (Düsseldorf: Patmos,
1977), 208-222. See also Michael Shermer, The Science of Good and Evil (New York: Holt, 2004), 185-6, who
argues that the moderating capacity of Golden Rule reasoning is especially evident if we imagine asking
recipients if they would mind our treating them in a particular way: merely to envisage posing the question will
sometimes clarify for us the incompatibility between our contemplated action and how we would have them
treat us in the same circumstances.
66
18
me and you? If it is the latter, how do I follow the Golden Rule if our desires cannot be
reconciled? And even if our desires can be reconciled – this is a problem we must return to –
how am I to act if fulfilling them requires morally condemnable or legally impermissible
behaviour? Though the Golden Rule might commonly be regarded as ‘that most unshaken
Rule of Morality, and Foundation of all social Virtue’, Locke observed, one might ‘without
absurdity’ ask that its ‘Truth and Reasonableness’ be ‘deduced’ rather than assumed.70
Leibniz went further: the Rule ‘requires not only proof but elucidation.’ If we are inclined to
make excessive demands of others, for example, ‘do we also owe to others more than their
share?’ When we apply the Golden Rule it does not serve as, but rather we supplement it
with, a ‘standard’ according to which we judge what should be owed to and expected from
others.71
During the eighteenth and nineteenth centuries, the claim that the Golden Rule is
unsatisfactory as a principle of fairness because it cannot be disconnected from the particular
desires of agents and recipients was bolstered by two arguments from unexpected quarters.
First, there is Kant’s critique of the Golden Rule. At first glance, Kant is an unlikely
opponent of the Golden Rule. ‘Do to others as you would have them do to you’, it has been
argued,72 is consistent with the first element of the categorical imperative: that one should act
only according to principles that one can rationally will everyone to act on (that one would
‘will that it become a universal law’73). The more common (and correct) philosophical
argument, however, is that the categorical imperative and the Golden Rule differ
significantly: primarily because the former enjoins everyone to submit to universal standards
whereas the latter requires that we set our standards of action according to how we would
have others act towards us.74 Kant himself clearly regarded the Golden Rule to be a
70 John Locke, An Essay Concerning Human Understanding, ed. P. H. Nidditch (Oxford: Clarendon Press, 1975; 1st
edn publ. 1690), 68.
71 The proper standard being, Leibniz continues, ‘the point of view of other people.’ G. W. Leibniz, New Essays
on Human Understanding, trans. & ed. P. Remnant & J. Bennett (Cambridge: Cambridge UP, 1981), I. 2. iv.
(Leibniz completed the first draft of the manuscript in 1704, though it was not published until 1765, almost 50
years after his death.) In a similar sceptical vein, see Robert Sharrock, Ypothesis ēthikē. De officiis secundum naturae
jus (Oxford: printed by A. Lichfield, printer to the University, for T. Robinson, 1660), c. 2 n 11; and, in
opposition to Sharrock’s scepticism in particular, cf. Samuel Pufendorf, De jure naturae et gentium II. 3. xiii.
72 See, e.g., S. B. Thomas, ‘Jesus and Kant: A Problem in Reconciling Two Different Points of View’ (1970) 79
Mind 188.
73 Immanuel Kant, Groundwork for the Metaphysics of Morals, trans. & ed. A. Wood with essays by J. B. Schneewind
et al. (New Haven: Yale UP, 2002 [1785]), 37.
74 See, e.g., E. W. Hirst, ‘The Categorical Imperative and the Golden Rule’ (1934) 9 Philosophy 328, 329-31; Peter
A. Carmichael, ‘Kant and Jesus’ (1973) 33 Philosophy and Phenomenological Research 412.
19
somewhat feeble principle of moral action:
Let one not think that the trivial quod tibi non vis fieri, etc. [What you do not want to be done
to yourself do not do to another] could serve as a standard or principle. For it is only derived
from that principle [sc., that one should act only according to that which one can will to
‘become a universal law’], though with various limitations; it cannot be a universal law, for it
does not contain the ground of duties towards oneself, nor that of duties of love towards
others (for many would gladly acquiesce that others should not be beneficent to him, if only
he might be relieved from showing beneficence to them), or finally of owed duties to one
another, for the criminal would argue on this ground against the judge who punishes him,
etc.75
In the twentieth century, Golden Rule reasoning underwent something of a
philosophical revival. The philosophy that came out of this revival we will consider in due
course. All that need be noted now is that those primarily responsible for the revival were
significantly inspired by Kant. That this should be so might seem odd, considering what
Kant thought of the Golden Rule as a moral principle. But although Kant was correct to
insist that the Golden Rule and the categorical imperative are not the same, it would be a
mistake to think that Golden Rule cannot be universalized. Objections might be raised,
furthermore, to all of the three criticisms he advances to show that the Golden Rule cannot
be a universal law. His first criticism, that the Rule cannot incorporate duties to oneself, is
valid only so long as one assumes that the Rule exclusively concerns agents’ actions only as
actions having an effect on recipients. But as we will see when we consider how the Golden
Rule has been understood by natural lawyers – we have already encountered the point in
relation to Ricoeur’s work – the choice to follow or ignore the Golden Rule is one which has
an impact on the agent, on his or her self-esteem or character, as well as on the recipient. To
adopt language typical of Golden Rule theorists in the natural law tradition: when I refuse to
do the good to others that I would have them do to me in like instances, I fail and disappoint
myself as well as my recipients.
Kant’s second and third criticisms merge in so far as they concern tastes: using
Golden Rule reasoning I might opt out of particular duties, Kant thinks, by acquiescing to
your not owing those duties to me, or by observing that although my office (as a judge, for
example) obliges me to dispense a particular treatment – sentencing criminals to
75
Kant, Groundwork for the Metaphysics of Morals, 48 n. Second ellipsis added by me.
20
imprisonment – I can escape that obligation by reasoning that I would not welcome
receiving that treatment.76 The first of these two arguments involves imagining oneself not as
another but another as oneself: I don’t understand why you’re upset that I didn’t buy you a
present, because I wouldn’t have minded if it was me who wasn’t bought a present. The
second is possibly a more serious distortion in that it entails the assumption that Golden
Rule reasoning is straightforwardly bilateral when in fact it will often be multilateral: keeping
with Kant’s example, the judge who sentences a criminal to imprisonment is making a
decision not only about how the criminal should be treated but about how the wider
community should be treated as well; the judge who refuses to imprison the criminal because
he would not want to be imprisoned were he in the criminal’s shoes could be accused of
treating others – probably many others – in a way that he would not want to be treated were
he one of them.77 In such a scenario, the nineteenth-century moralist Richard Whately
observes, it is unlikely that even the criminal will fail to see what the judge applying the
Golden Rule is bound by reason to do:
if you had a cause to be tried, though of course you would wish the decision be in your favor,
you would be sensible that all you could reasonably expect of the judge would be that he should
lay aside all prejudice, and attend impartially and carefully to the evidence, and decide
according to the best of his ability. And this … is what an upright judge will do.78
Although the Golden Rule might be defended against Kant’s criticisms, to mount the
defence is to risk overlooking the most important point: that these criticisms struck a nerve.
Various twentieth-century German philosophers have argued that in so far as the Golden
Rule has been discredited as a philosophical concept, principal responsibility for the
achievement must go to Kant.79 None the less, the defence against the third of Kant’s
criticisms of the Golden Rule – that the judge’s decision not to send a criminal to prison
76 This last line of reasoning is also adopted by Hans Kelsen. ‘It is quite evident’, according to Kelsen, ‘that the
golden rule, if applied to cases of its violation, must lead to absurd consequences; for nobody wants to be
punished, even if he has committed a crime.’ Hans Kelsen, ‘What is Justice’ (1952), in his What is Justice? Justice,
Law, and Politics in the Mirror of Science (Berkeley: University of California Press, 1957), 1-24 at 17. Kelsen
probably did not appreciate that Kant had criticized the Golden Rule in the same way, for he asserts that ‘[i]t
was evidently the golden rule … which inspired … Kant to his formulation of’, indeed which provided the
‘model’ for, ‘the categorical imperative’. Ibid. 17-18.
77 See R. M. Hare, Freedom and Reason (Oxford: Clarendon Press, 1963), 115-6.
78 Richard Whately, Introductory Lessons on Morals, and Christian Evidences (Cambridge: Bartlett, 1857), 27.
79 See, e.g., Hans Reiner, ‘Die “Goldene Regel”’ (1948) 3 Zeitschrift für philosophische Forschung 74, 79-81; ‘Die
Goldene Regel und das Naturrecht’ (1977) 9 Studia Leibnitiana 231, 233; Duty and Inclination: The Fundamentals of
Morality Discussed and Redefined with Special Regard to Kant and Schiller, trans. M. Santos (Hague: Nijhoff, 1983), 2745; Hans-Ulrich Hoche, ‘Die Goldene Regel: Neue Aspekte eines alten Moralprinzips’ (1978) 32 Zeitschrift für
philosophische Forschung 355, 355-6.
21
constitutes treatment of others besides the criminal himself – is worth lingering over,
because it illustrates the second unexpected line of argument that I want to examine: that the
Golden Rule is defensible as a utilitarian principle. Note that this is not Whately’s defence:
for him, the judge sentences the criminal to a term in prison, even though he would not wish
to endure this sentence himself, because he understands that his obligation is to do ‘not what
he might wish for in each case, but what [he] would regard as fair, right, just, reasonable, if he
were in another person’s place.’80 The utilitarian argument, by contrast, is that if the
preference of Y (e.g. the community’s preference for law and order) counts for more than
that of X (e.g. the criminal’s preference that he walk free from court) then the judge’s
decision for Y is defensible on the basis of interpersonal utility comparison.
What, however, if the choice between the preferences of X and Y is not clear, so that
my asking what I would want if I were X or a member of Y gives me not an obvious answer
but conflicting prescriptions regarding the right course of action? Golden Rule reasoning is
still defensible, John Harsanyi argues, so long as I make ‘the fictitious assumption’ that ‘I
would not know in advance what my actual social position would be in’ a society which
accepted the preferences of X or one which favoured those of Y and that there would be
‘the same probability of [my] occupying any possible social position’ in either system.81
Given this ‘equiprobability postulate’,82 and given that my imagined choice – which Harsanyi
envisages as a choice between large-scale systems (such as between capitalism and
socialism83) rather than preferences between particular mundane options – requires me to
consider what I am willing to risk, I will do what any ‘rational individual’ would do and
choose the ‘social system that would maximize [my] expected utility’.84 As a defence of
Golden Rule reasoning, Harsanyi’s argument is open to criticism primarily because of a
second postulate that he advances, the similarity postulate, discussion of which is deferred
until we turn to the problem of the imaginative leap. This is not, however, to imply that we
ought to endorse the equiprobability postulate. It is unclear not only why I must postulate
equiprobability of possible social positions when evaluating my prospects under, say, two
different systems but also, given that I have no knowledge of what my social position would
Whately, Introductory Lessons on Morals, 26.
John C. Harsanyi, ‘Morality and the Theory of Rational Behavior’ (1977) 44 Social Research 623, 632, 634. See
ibid. 624 for Harsanyi’s specific endorsement of the Golden Rule as a moral principle.
82 Ibid. 632.
83 See ibid. 631-2.
84 Ibid. 632.
80
81
22
be under either system, why I must choose the one which would maximize my expected
utility.85
The conventional utilitarian defence of Golden Rule reasoning says nothing about
multilateralism or the possibility of an agent’s action affecting different recipients with
conflicting utility functions. Rather it is based on the conviction, vividly articulated by
Seneca, that there are gains to be had from treating those subject to our power with
kindness.86 Those whom we treat as we would like to be treated are likely to appreciate and,
in one way or another, reward our behaviour. ‘In the golden rule of Jesus of Nazareth,’ Mill
wrote, ‘we read the complete spirit of the ethics of utility. To do as you would be done by,
and to love your neighbour as yourself, constitute the ideal perfection of utilitarian
morality.’87 Since treating others as you would have them treat you usually means treating
others benevolently, and since benevolence normally begets benevolence, following the
Golden Rule is likely to increase aggregate utility.88
This conventional utilitarian defence is remarkably weak. It commits us to a meansend explanation of treating others as we would have them treat us which, as we have seen, is
actually contrary to the Golden Rule, respect for which requires that we sometimes act
against those who would reward us were we to support their interests. Doing as you would
be done by hardly constitutes ‘the ideal perfection of utilitarian morality’, furthermore, if an
increase in aggregate utility is only the probable consequence of such action, if it is possible
that Golden Rule-motivated action could, say, generate disutility (because, for example, a
recipient considers, and tells the agent that she considers, the action patronizing). Mill seems
to have in mind, when he writes of the ‘ideal perfection’, a universalized neighbour principle:
to generate the greatest happiness for the greatest number we should love our neighbour –
interepreting this word to mean anyone else – as ourselves. It is certainly Mill’s version of
See David Gauthier, ‘On the Refutation of Utilitarianism’, in The Limits of Utilitarianism, ed. H. B. Miller & W.
H. Williams (Minneapolis: University of Minnesota Press, 1982), 144-63 at 155-60. ‘In the kind of choice
required by Harsanyi’s argument,’ Gauthier concludes, ‘the chooser does not know who he is, and so cannot
express a single set of preferences, to be represented by a single utility function. Not only do the prospects
among which he expresses preferences involve his coming to possess different personal characteristics; he is
required to express each preference from the standpoint of the person with those characteristics. He does not
have a single, unified standpoint from which to establish a preference ordering. The ordering that can be
derived from calculating the average expected utility for each prospect is not the preference ordering of any
individual chooser. The existence of a single interpersonal utility measure does not entail the existence of a
single preference ordering’ (159).
86 See Seneca, Epistles IV. 47: 11; and also, for essentially the same sentiment, the Letter of Aristeas 226-7.
87 John Stuart Mill, Utilitarianism, ed. M. Warnock (London: Fontana, 1962 [1861]), 268.
88 See Cadoux, ‘The Implications of the Golden Rule’, 280-3.
85
23
‘the doctrine of neighbourly love’ that John Mackie has in mind when he dismisses it as
evidently ‘impracticable’, given that ‘[p]eople simply are not going to put the interests of all
their “neighbours” on an equal footing with their own interests and specific purposes and
with the interests who are literally near to them.’89 But the conception of the neighbour
principle which Mill upholds and Mackie dismisses is vacuous. If the principle really did
make no distinction between personal interests (including the interests of those near to us)
and everyone else’s interests then it would provide no reason for us not to act selfishly, for –
as with the ‘very simple idea’ of Dostoyevky’s Luzhin90 – selfish behaviour would be on an
equal footing with, no less benevolent than, any other form of behaviour.
Love-of-neighbour permits of a variety of plausible interpretations even if one
confines oneself to the principle as it appears in the New Testament.91 But of course not all
interpretations of the principle are plausible. Just as it would be a mistake to interpret ‘love’
in this context to mean idealized or romantic love – as opposed to readiness and willingness
to benefit or promote the well-being of others92 – so too it is a mistake to think that
‘neighbour’ is so indiscriminate as to require undifferentiated treatment as between, say, the
interests and needs strangers on the one hand and those of oneself, one’s family and one’s
friends on the other. Certainly loving one’s neighbour as oneself means treating all others as
persons with value and dignity equal to one’s own. But to love one’s neighbour as oneself in
the sense of being indiscriminately concerned with the welfare and interests of everybody
and anybody is to make a choice contrary to practical intelligence and reasonableness, for
one could not be genuinely and indiscriminately concerned in this way and also lead one’s
own life: self-abnegation on such a scale would suffocate personhood. A rational approach
to life can embrace the doctrine of neighbourly love only so long as the doctrine is
understood to demand reasonable discrimination in favour of one’s own interests and those
of one family, friends and particular groups.93
J. L. Mackie, Ethics: Inventing Right and Wrong (London: Penguin, 1990 [1977]), 130-1.
‘[T]he more successfully private business is run, … the more solid are the foundations of our social life and
the greater is the general well-being of the people. Which means that by acquiring wealth exclusively and only
for myself, I’m by that very fact acquiring it, as it were, for everybody and helping to bring about a state of
affairs in which my neighbour will get something better … as a result of the higher standard of living for all.
It’s really a very simple idea, but unfortunately it hasn’t been generally accepted for a long time …’ Fyodor
Dostoyevsky, Crime and Punishment, trans. D. Magarshack (London: Penguin, 1966 [1866]), 167.
91 See Donald C. Hodges, ‘The Golden Rule and its Deformations’ (1957) 38 Personalist 130.
92 See Grisez, The Way of the Lord Jesus. Vol. 2, 307.
93 See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 107-9; also Richard W.
Wright, ‘The Principles of Justice’ (2000) 75 Notre Dame L. Rev. 1859, 1866-9.
89
90
24
For our purposes, the most significant problem with the conventional utilitarian
defence is that it actually highlights how the Golden Rule, explained in terms of the desires
of agents and recipients, fares poorly as a principle of fairness. Since the Golden Rule
requires us to act only as we ourselves would consider acceptable were we the recipient
rather than the agent, Ricoeur argues, it opposes the utilitarian ‘logic of the scapegoat’,
whereby sacrificing the interests ‘of some unfavoured individuals or groups’ is permissible ‘if
that is required by the good of the greatest number’.94 But the conventional utilitarian
conception of the Golden Rule does not exclude the possibility of such logic. Two parties
might collude so that A treats B as he would have B treat him and B treats A as he would
have A treat him so that A and B gain to the disadvantage of C.95 Some utilitarians
acknowledge the difficulty. Collusion of this nature might be deemed anti-social action – this
would appear to be the conclusion favoured by Harsanyi – which, because it is essentially
action against ‘members of the same moral community’, must have ‘no claim for a hearing
when it comes to our concept of social utility.’96 To exclude anti-social preferences from the
social utility function, however, is not to refine utilitarian ethical theory but to concede (as
not all utilitarians would concede97) that its moral reach must be limited in a particular way.
Moreover, if collusive action lacks a third-party victim, if it affects nobody but the parties
who consent to it, then it might be argued that it is not self-evidently a case of anti-social
preference satisfaction (i.e., behaviour directed against members of the same moral
community). Yet such action might still be morally questionable.
Another utilitarian saw the problem clearly, and indeed espied a route to solving it.
The traditional formulation of the Golden Rule, do to others as you would have them do to
you, ‘is obviously unprecise’, Henry Sidgwick observed, ‘for one might wish for another’s cooperation in sin, and be willing to reciprocate it.’98 If we try to make the Rule more precise
Ricoeur, The Just, 53, 52.
This is exactly what happened at the end of the 1977 English football league season: two teams facing each
other on the final match day, Bristol City and Coventry City, needed only to draw with one another to avoid
relegation so long as a third relegation-threatened team, Sunderland, lost their match. In the final minutes of
the Bristol-Coventry match, news flashed up on the message board that Sunderland had lost. The score at that
point between Bristol and Coventry was 2-2. A zero sum game immediately became a non-zero one: the teams
stopped competing and spent the remainder of the match running down the clock to ensure a draw, and
Sunderland’s relegation. See Richard Dawkins, The Selfish Gene, 2nd edn (Oxford: Oxford UP, 1989), 222-4.
96 Harsanyi, ‘Morality and the Theory of Rational Behaviour’, 647.
97 Cf. J. J. C. Smart, ‘An Outline of a Utilitarian System of Ethics’, in J. J. C. Smart and Bernard Williams,
Utilitarianism for and Against (Cambridge: Cambridge UP, 1973), 1-74 at 25-6.
98 Henry Sidgwick, The Methods of Ethics, 7th edn (Indianapolis: Hackett, 1981 [1907]), 380.
94
95
25
by saying ‘that we ought to do to others only what we think it right for them to do to us’ our
difficulties persist, for ‘the differences in the circumstances – and even in the natures – of
two individuals, A and B’ (A, for example, being a child and B his parent), may ‘make it
wrong for A to treat B in the way in which it is right for B to treat A.’99 For an illustration of
‘the “Golden Rule” precisely stated’100 we do well, Sidgwick thought, to look to Samuel
Clarke’s Rule of Equity: ‘[w]hatever I judge reasonable or unreasonable, that another should
do for me, that by the same judgment I declare reasonable or unreasonable, that I in the like
case should do for him’.101 Clarke’s formulation is important not only because it makes
explicit something that we have observed is implicit in the Golden Rule – that we are to treat
others as we would have them treat us in similar instances (instances which, though they may
differ on their facts, demand from the agent a similar attitude or disposition) – but also
because it suggests that the Rule requires us to do to others the good that we would have
them do to us (and to avoid doing to them the harm that we would have them avoid doing
to us). That this is what Clarke understands reasonableness to mean is absolutely clear: ‘that
which is good is fit and reasonable, and that which is evil is unreasonable to be done’.102
Sidgwick, for his own part, re-casts the Rule in a ‘negative form’: ‘it cannot be right’
for me to do to you what it would be wrong for you to do to me ‘without there being any
difference between [our] natures or circumstances … which can be stated as a reasonable
ground for difference of treatment.’103 I may well – to recall and reply to Bernard Shaw’s
quip – do to others what I would not have them do to me precisely because I recognize the
distinctness of our circumstances: the dentist’s treatment of me, it will be recalled, is not
treatment she would want to receive from me. The ‘practical importance’ of this insight, ‘and
its truth, so far as it goes, appears to me self-evident’, Sidgwick concludes.104
He also observes, however, that it ‘manifestly does not give complete guidance’.105
The ‘natures or circumstances’ of A and B may be the same in so far as both ‘wish for’ and
are ‘willing to reciprocate’ the other’s ‘co-operation in sin’. One early critic of Sidgwick, John
Ibid.
Ibid. 385.
101 Samuel Clarke, A Discourse Concerning the Unchangeable Obligations of Natural Religion, and the Truth and Certainty of
the Christian Revelation (London: printed by W. Botham for James Knapton, 1706), 86-7. See also Sidgwick, The
Methods of Ethics, 384-5.
102 Clarke, A Discourse Concerning the Unchangeable Obligations of Natural Religion, 92.
103 Sidgwick, The Methods of Ethics, 380.
104 Ibid.
105 Ibid.
99
100
26
Bigelow, flatly denied this possibility: ‘no one is willing to co-operate with another in sinning
against himself…. It is impossible to conceive of a person wronging another if he knew that
he himself was to be wronged and to suffer simultaneously and to precisely the same
extent.’106 No doubt Bigelow, clearly aghast that anyone could interpret the principle that we
should do to others as we would have them do to us in the same circumstances as a potential
endorsement of co-operation in sin, would have concurred with Mill when he observed that
‘[t]here is no difficulty in proving any ethical standard whatever to work ill, if we suppose
universal idiocy to be conjoined with it’.107
But the interpretation is not foolish. In R v Brown – as even the most unreceptive
students of English law never seem to forget – the appellants admitted to having engaged in
private, consensual, homosexual sado-masochistic acts but were unaware that in doing so
they were committing a criminal offence.108 The activities which were the subject-matter of
the prosecution – ‘violence to the buttocks, anus, penis, testicles and nipples’109 – would
probably lead anyone not inclined to participate in them to react with ‘horror, amazement or
incomprehension, perhaps sadness’; 110 even the activities which were not the subject of any
charge on the indictment, Lord Mustill envisaged, ‘very few could read … a summary of …
without disgust.’111 Yet ‘[a]stonishing though it may seem,’ Lord Slynn remarked, ‘the
persons involved positively wanted, asked for, the acts to be done to them, acts which it
seems from the evidence some of them also did to themselves…. The matter came to the
attention of the police “coincidentally”…. The acts did not result in any permanent or
serious injury or disability or any infection and no medical assistance was required even
though there may have been some risk of infection, even injury.’112 The acts took place in
private, did not involve children or drugs, and were self-regulated in the sense that
participants used code words when they could not bear further infliction of pain.
Counsel for the appellants in Brown could have argued – there is no evidence that
they did argue – that their actions were defensible on the basis of the conventional utilitarian
conception of the Golden Rule: agents treated recipients essentially as they would have
Bigelow, Toleration, 87-8.
Mill, Utilitarianism, 275.
108 R v Brown [1994] 1 AC 212, HL.
109 Ibid. 238 per Lord Templeman.
110 Ibid. 257 per Lord Mustill.
111 Ibid.
112 Ibid. 281.
106
107
27
recipients treat them (as the recipients, qua agents, generally did treat them), recipients were
not coerced, and the utility gains of those involved were not negated by costs to third
parties. The majority of the House of Lords dismissed the appeal, finding the appellants
guilty of various counts of assault contrary to the Offences of the Person Act 1861, primarily
because consent cannot be a defence to any act which one person does to another. The
appellants themselves ‘recognised … that there must be some limitation upon the harm
which an individual could consent to receive at the hand of another.’113 The physical danger
to those engaging in homosexual sado-masochistic activity will often be serious and
unregulated – ‘good luck rather than good judgment’114 appeared to explain why no grave
injury had been suffered by the appellants in Brown – and so limiting ‘the extent to which an
individual may consent to infliction [of bodily harm] upon himself by another’115 is necessary
‘in the public interest’.116
This public interest argument was not only framed in terms of there having to be
some violent actions which cannot be defended by pointing to the victim’s consent. More
than once their Lordships, echoing Clarke, contended that the reciprocated action of the
appellants could not be legally condoned if it was intrinsically evil (unreasonable). ‘Pleasure
derived from pain is an evil thing’, Lord Templeman observed.117 ‘[T]he practices of the
appellants were … degrading to body and mind and were developed with increasing
barbarity’ and ‘[c]ruelty to human beings’.118 Nothing about the practices, Lord Lowry
insisted, could ‘be regarded as conducive to the enhancement or enjoyment of family life or
conducive to the welfare of society.’119 It is difficult to imagine that even those attracted to
these practices would describe them otherwise. To argue that these practices might be legally
condoned on the basis that A is simply doing to B what B would have A do to him is to
make the mistake – a mistake often attributable to utilitarian defenders of the Golden Rule – of
thinking that the nature or quality of the Golden Rule-follower’s action is irrelevant, that the
justification for the action is the apparent fact that the mutual satisfaction of preferences
increases average utility.
Ibid. 238 per Lord Jauncey.
Ibid. 246 per Lord Jauncey.
115 Ibid. 241 per Lord Jauncey.
116 Ibid. 246 per Lord Jauncey.
117 Ibid. 237.
118 Ibid. 235-6.
119 Ibid. 255.
113
114
28
I have emphasized this mistake, but I have also referred to a natural law conception
of the Golden Rule which does not treat the nature or quality of the Rule-follower’s action
as irrelevant. The Golden Rule as a feature of natural law theory is a theme which needs our
attention, though for the moment it remains some way in the distance. Let me conclude this
section as I began it, with a summary of the argument so far. The Golden Rule is, I claim,
defensible as a principle of fairness. I have tried to show, however, that this defence cannot
be mounted successfully if the Golden Rule is not detached from the desires of agents and
recipients, that the Rule cannot be entertained seriously as a principle of fairness if it
amounts to the proposition that we are entitled to impose upon others the preferences that
we would happily have imposed on us. But what reasons might there be for concluding that
the Golden Rule amounts to anything more than this? It is to this question that we turn next.
3. Remedial work
‘Reflective people want to satisfy themselves’ that their judgments and decisions will
withstand serious scrutiny. ‘They also want to satisfy other people, whose interests are
affected by what they do, that they are acting out of tested conviction and with integrity. So
they try to explain their convictions in a way that displays reflection, sincerity, and
coherence, even when they have no hope of converting others to those convictions.’120 This
argument – voiced by Ronald Dworkin in this instance – is reminiscent of that of the first
great American votary of principled judicial decision-making, Herbert Wechsler, who, in his
famous article of 1959, suggested that ‘the judicial process … must be genuinely principled,
resting … on analysis and reasons quite transcending the immediate result that is achieved’,
meaning that ‘courts … should decide … on grounds of adequate neutrality and generality’ –
grounds, that is, which ought to be intelligible to those with ‘an opposing interest’ as well as
to those whose interests they support.121
Wechsler was notoriously diffident when it came to accepting the ‘challenge’ of
specifying a ‘neutral’ principle to apply to the school-segregation cases,122 and he certainly did
not explicitly entertain the possibility that the Golden Rule could fit the bill. That it could
Ronald Dworkin, Justice in Robes (Cambridge, Mass.: Belknap Press, 2006), 80.
Herbert Wechsler, ‘Toward Neutral Principles of Constitutional Law’ (1959) 73 Harvard L. Rev. 1, 15.
122 Wechsler, ‘Toward Neutral Principles’, 34.
120
121
29
might seem remote: the racist confronted with the proposition that segregation means
treating others in a way that he would not have them treat him might reply that he would be
perfectly happy for those others to insist on at least keeping their lives separate from his,
that support for segregation, so far as he is concerned, does not offend against the Golden
Rule. John F. Kennedy saw the matter differently. Speaking in 1963, in the wake of
Governor George Wallace’s stand against de-segregation at the University of Alabama, he
observed that American citizens were ‘confronted primarily with a moral issue. It is as old as
the Scriptures and it is as clear as the American Constitution. The heart of the question is
whether all Americans are to be afforded equal rights and equal opportunities, whether we
are going to treat our fellow Americans as we want to be treated.’123 Robert M. MacIver,
President of New York’s New School of Social Research at the time that Kennedy spoke,
had a decade earlier proclaimed the Golden Rule ‘a principle in the name of which we can
appeal to all men, one to which their reason can respond in spite of their differences … the
only universal of ethics that does not take sides’.124 Kennedy and MacIver – like Sidgwick
and Clarke125 – were making a connection between the Golden Rule and universalized moral
judgments: if (say) according equal rights and opportunities is a form of treatment which is
considered unqualifiedly good then it must be a good for any person, irrespective of their
identity. The Golden Rule, understood thus, is a neutral (impartial) principle.126
Televised address to the nation by President John F. Kennedy, June 11, 1963, repr. in New York Times, 12
June 1963 at 20.
124 Robert M. MacIver, ‘The Deep Beauty of the Golden Rule’, in Moral Principles of Action: Man’s Ethical
Imperative, ed. R. N. Anshen (New York: Harper & Bros., 1952), 39-47 at 41-2.
125 See Sidgwick, The Methods of Ethics, 379; Clarke, A Discourse Concerning the Unchangeable Obligations of Natural
Religion, 86.
126 Cf. Martha Nussbaum, ‘Golden Rule Arguments: A Missing Thought?’, in The Moral Circle and the Self: Chinese
and Western Approaches, ed. K. Chong et al. (Chicago: Open Court, 2003), 3-16. Nussbaum argues, pace David
Nivison, ‘Golden Rule Arguments in Chinese Philosophy’, in The Ways of Confucianism: Investigations in Chinese
Philosophy, ed. B. W. Van Norden (Chicago: Open Court, 1996), 59-76, that it is difficult to see why ancient
Chinese philosophers would not, just like their ancient Greek counterparts, have recognized that all human
beings are equally vulnerable to chance and that one’s fortunes are not fixed, and why recognition of this fact –
that chance is a great leveler – should not have made its way into Chinese Golden Rule reasoning: we should
not assume, in other words, that for the ancient Chinese philosophers our concern for others less advantaged is
largely motivated by the fact that we, but for the grace of God (as it were), could have been them. That Golden
Rule reasoning should be understood as tempered by a recognition of the equality of fortune Nussbaum thinks
exemplified by a comment of President Bill Clinton’s in his First Inaugural: ‘but for fate, we – the fortunate and
the unfortunate – might have been each other.’ This is, Nussbaum says, the ‘the standard combination of a
golden-rule appeal to imagination with the missing thought about the vicissitudes of fortune’ (‘Golden Rule
Arguments’, 12) – the thought which is possibly missing, that is, from Nivison’s account of Chinese Golden
Rule reasoning.
Like Nussbaum, I am ‘a complete amateur in matters Chinese’ (ibid. 3) and so I do not know if this
thought is missing from, in the sense that it ought to have been present, in Nivison’s account. But I think that
123
30
It is important to be careful with this argument. Although ‘the meaning of “good”
and “right” … are left undefined by the Golden Rule’, Gould claims, ‘society … supplies the
definition’127 and ‘content’128 for both notions through ‘[c]ustom’129 and the ‘orthodox
beliefs’130 of ‘the ordinary person.’131 So long as a community has worked out where it stands
on ‘good’ and ‘right’, in other words, we have everything we need to supply content to the
Golden Rule. Yet Gould concedes that, on ‘the ethical problem of segregation’, midtwentieth century America appeared not to have worked out where it stood.132 Various
twentieth-century moral philosophers believed that the Golden Rule is indeed an impartial
principle of moral action. But they were also generally of the view that it is impossible to
demonstrate this impartiality so long as Golden Rule reasoning is understood to be
inherently bound up with particular human desires. How might we disconnect the two
things? The answer cannot be simply to re-cast the Golden Rule as a principle of moral
action the impartiality of which is assumed by virtue of the fact that it requires us, in our
treatment of others, to do good (and avoid bad) in accordance with our own reading of a
community’s moral compass. Making such a reading, even if we feel capable of doing such a
thing, leaves the Golden Rule grounded in particular preferences and desires. Nor can we
answer the question satisfactorily by arguing, as Blackstone does, that ‘[i]f one interprets the
… Golden Rule … as excluding … egoism or prudential concern’133 then it must be
understood to be ‘a metamoral rule’134 which, though ‘itself morally … neutral’, operates ‘as a
guide to one’s conduct’ in so far as ‘[c]onformity to [it] constitutes a necessary condition for
a judgment’s being a moral judgment’.135 To argue thus is to neglect the fact that, sometimes,
if the ancient Chinese did make this combination then they, like Nussbaum, would have been making a
mistake. For if the Golden Rule is linked to the vicissitudes of fortune – if we are supposed to treat the less
advantaged as we would want to be treated were we them – then we have to explain how the unfortunate are
supposed to treat the fortunate: why, that is, should they treat the more fortunate as they would want to be
treated themselves? The Nussbaum-Clinton interpretation of the Golden Rule leaves this question unanswered.
While it requires that the more advantaged show concern for the less advantaged, because the more advantaged
could have been (could imagine themselves to be) the less advantaged, it appears to require no such concern,
and offers no similar logic to show why there should be such concern, in the opposite direction.
127 James Gould, ‘The Golden Rule’ (1983) 4 American Jnl of Theology & Philosophy 73, 76.
128 Ibid. 78.
129 Ibid.
130 Ibid. 75.
131 Ibid. 74.
132 James A. Gould, ‘The Not-So-Golden Rule’ (1963) 1 Southern Jnl of Philosophy 9, 12.
133 W. T. Blackstone, ‘The Golden Rule: A Defense’ (1965) 3 Southern Jnl of Philosophy 172, 175. Emphasis added.
134 Ibid. 172.
135 Ibid. 173.
31
the judgements we make are considered morally bad precisely because they do not conform
to the Golden Rule.
The case for a Golden Rule which is not connected to particular desires has attracted
at least three strong philosophical defences. Consider, first of all, the defence mounted by
Marcus Singer. The Golden Rule, according to Singer, can be interpreted as connected to
particular desires – what he indeed refers to as ‘the particular interpretation’ of the Rule.136
On this interpretation, the Rule reads: ‘Do unto others what you would have them do unto
you’.137 The particular interpretation, as we know already, is open to the objection that it is
essentially an excuse for imposing our tastes (our enjoyment of a good argument, of having
smoke blown in our faces, of the sound of late-night street parties, and so on) on others.
Fortunately, Singer continues, the Golden Rule does not have to be interpreted thus. It is
also amenable to a ‘general interpretation’ which might be phrased: ‘Do unto others as you
would have them do unto you.’138 On this interpretation, recipients are entitled to expect
agents to take account of their interests, desires, needs and wishes – which may well differ
from the agent’s – and either satisfy those interests or else not wilfully frustrate them. While
treating others as you would have them treat you does not mean having to treat them as if
they shared your own tastes, interests and desires, in other words, it does mean treating them
according to ‘the same principle or standard’ as you would have them apply in their
treatment of you.139 The Golden Rule, on the general interpretation, ‘requires A to act
towards B on the same standard or principle that he would have B apply in his treatment of
him.’140 Although ‘the Golden Rule by itself does not unambiguously and definitely
determine just what these “standards or principles” should be, … it does something towards
determining this’141 because it serves as ‘an instrument of moral education’,142 requiring the
agent not to ‘imagine’ himself ‘to be another’143 – this ‘“if I were he” sort of thinking,’ Singer
insists, ‘is not called for in the application of the Golden Rule’144 – but to think about what
standard of treatment he would want applied if he were the recipient.
Marcus G. Singer, ‘The Golden Rule’ (1963) 38 Philosophy 293, 299.
Ibid.
138 Ibid.
139 Ibid. 300.
140 Ibid. 310.
141 Ibid. 313.
142 Ibid. 310.
143 Ibid.
144 Ibid. 311.
136
137
32
Singer’s claim that the general interpretation of the Golden Rule does not require the
agent to engage in ‘“if I were he” sort of thinking’ seems wrong. In thinking about what
standard of treatment I would want applied if I were the recipient, I imagine myself in the
recipient’s situation. When Singer himself tries to illustrate his argument – using the example
of a judge sentencing a prisoner – he makes the very manoeuvre he purports to eschew: ‘the
jailer, after thinking of himself in the position of the prisoner, should then apply the Rule to himself
in this position, and reflect that he, if he were the prisoner, should not try to escape, because if he
were the jailer he would not want the prisoner to escape’.145 Singer’s objective is to distinguish
his position from that held by Whately, discussed earlier, who insists that application of the
Golden Rule presupposes on the part of the agent some understanding, derived from
imagining oneself in the recipient’s situation, of what is ‘fair, right, just, reasonable’
treatment.146 But the distinction is not successfully made. Singer’s general interpretation of
the Golden Rule requires agents to supply standards and principles of treatment by
imagining themselves as their recipients.
To distinguish the general and the particular interpretations of the Golden Rule,
Singer makes the words ‘what’ and ‘as’ do a considerable amount of work. It seems unlikely
that many people would derive such a crucial distinction from these two words – it is
certainly possible, for example, to find writers on the Golden Rule using ‘as’ when they
clearly have in mind the particular interpretation.147 But if one accepts that the distinction
between the two interpretations is genuine and important it matters little, if at all, that its
formulation is made to turn merely on the replacement of one word with another. I believe
that the distinction is important. But I also think that the general interpretation of the
Golden Rule is not as robust as Singer believes it to be. We know that the particular
interpretation authorizes someone who, for example, likes to argue and be argued with to be
quarrelsome towards others: I am permitted to do to you what I would like you to do to me.
But this cannot be the case, Singer insists, on the general interpretation. On this
interpretation the quarrelsome person, ‘if he is to do as he would be done by, … must take
Ibid. 312. Emphasis added.
Whately, Introductory Lessons on Morals, 26; and cf. Singer, ‘The Golden Rule’, 309-10.
147 See, e.g., Weiss, Man’s Freedom, 139 (‘as we would be willing …’).
145
146
33
account of and (not ignore but) respect the wishes of people who do not like to be provoked
or to engage in quarrels, and restrict his quarrels to those who, like him, enjoy them.’148
I do not see why, on the general interpretation, this has to be the case. Singer’s
quarrelsome person might claim that in quarreling with another he is treating them as he
would expect to be treated – according to the same standard he would expect to be applied
to himself – in the same situation. So it is that X might mercilessly criticize the scholarship
of Y not because of a love of quarreling or animosity towards Y but because X is applying a
principle or standard – that scholarship is a matter of seeking truth and exposing untruth,
with no regard for politics, personalities, fashion and so on – and believes that not to apply
this principle or standard, to pull one’s punches or look the other way when there is
committed an error such as that which has been committed by Y, is to demean Y in
particular (since his work is treated superficially and dishonestly) and to do a disservice to
scholarship generally. When we treat others according to the same principles or standards as
we would have them apply in their treatment of us, our treatment might well strike them as
an oppressive imposition of our tastes. But this does not mean that they should be shielded
from such treatment. The Golden Rule, as I tried to show in the first section of this essay,
cannot be straightforwardly equated with charity, benevolence or good samaritanism.
Treating our recipients according to the principles and standards we would have applied to
us in the same circumstances may occasionally require something akin to being cruel to be
kind (as might be the motive of, say, the parents who worked their way through college and
now refuse to pay off a child’s debt). Applying to our recipients standards of treatment lower
than what we would have applied to ourselves in the same circumstances, no matter that our
recipients might welcome such an application, may be to treat them, and others, unfairly.
Alan Gewirth, the author of the second significant philosophical defence of the
Golden Rule that I want to consider, approves of Singer’s distinction between particular and
general interpretations of the Golden Rule but recognizes that the recipient faced with the
agent who claims to be to following the Rule on its general interpretation – who claims that
his treatment of the recipient accords with some standard or principle that, were he in the
recipient’s position, he would want applied to himself – might consider the agent’s treatment
oppressive because the agent’s principles and standards are different from his own.149 A
148
149
Singer, ‘The Golden Rule’, 300.
Alan Gewirth, ‘The Golden Rule Rationalized’ (1978) 3 Midwest Studies in Philosophy 133, 134-5.
34
possible way around this difficulty is to interpret the Golden Rule according to its ‘spirit or
intention’, which, Gewirth thinks, seems to be ‘mutualist or egalitarian’ in that its application
should dissatisfy neither the agent not the recipient.150 This interpretation of the Golden
Rule – act in accordance with your recipient’s desires as well as your own – Gewirth terms
‘the Generic interpretation’.151
The Generic interpretation is beset by two difficulties. First, in instances where the
agent’s and the recipient’s desires conflict, it ‘provides no guidance concerning how …
accommodation or compromise is to proceed’.152 Secondly, even when an agent does act in
accordance with his own desires as well as the recipient’s, the resulting action could still – as
it was in R v Brown – be contrary to legal rules. But can we not accept that there are ‘certain
standard desires which all persons are normally thought to have for themselves’,153 such as
the desire not to have one’s property stolen, the desire not to be physically harmed, the
desire not to be the subject of acts of deception, and so on? The Golden Rule might be
successfully defended against the accusation that it allows us to impose our desires on
others, in other words, if we can demonstrate a distinction between specific desires of agents
and recipients and ‘standard’ desires which are the basis for determining the moral rightness
of actions.
Gewirth thinks this is possible. The ‘difficulties of the Golden Rule are to be
resolved’, he argues, ‘by adding the requirement that the desires in question must be
rational.’154 Thus amended, the Golden Rule would read: ‘Do unto others as you would
rationally want them to do unto you.’155 It would be a serious error, he insists, to interpret
the term ‘rational’ in a ‘normatively moral sense’, as Samuel Clarke does, and assume that the
Golden Rule presupposes some criterion of intrinsic reasonableness (or goodness) which
enables us to distinguish between legitimate and illegitimate efforts to follow it.156 For ‘[i]f
criteria of reasonableness vary from one person to another, then the problem of divergent
“tastes” is not resolved.’157 Clarke, as we have seen, does not argue from the premiss that
reasonableness might vary thus; reasonableness he equates not with tastes but with the
Ibid. 136.
Ibid.
152 Ibid. 137.
153 Ibid.
154 Ibid. 137-8.
155 Ibid. 138.
156 Ibid.
157 Ibid.
150
151
35
pursuit of good and avoidance of evil. For Gewirth – at this point he claims that much the
same criticism he is levelling at Clarke can be levelled also at Augustine and Thomas Aquinas
– such a strategy fares no better than one which relativizes reasonableness, for if ‘reasonable’
is taken to have ‘some definite normative moral sense’158 we must already know what
constitutes morally right action before we follow the Golden Rule, and so ‘the Rule would
no longer be a first moral principle determining what are moral goods and evils’.159 There is
no need to dwell on this criticism – that writers in the natural law tradition cannot
successfully defend the Golden Rule as a first moral principle – since it is not essential to
Gewirth’s argument; he is simply trying to show the reader that his argument is
distinguishable from that of Clarke and others. But it should at least be noted that his
criticism is not so much wide of the mark as a shot at a non-existent target: within the
natural law tradition, the Golden Rule is generally understood to provide a degree of
specificity to a first moral principle – for Aquinas, the principle that one should love one’s
neighbour as oneself160 – rather than to be a first principle in its own right.
Instead of interpret the word ‘rational’ in a normatively moral sense we do better,
Gewirth argues, to interpret it ‘in a morally neutral sense.’161 Such an interpretation, ‘which
directly takes no sides on the moral issue of how persons ought to treat one another’,162
requires, in place of the particular wants and desires of agents and recipients, a principle
which will be intelligible and will appeal to both recipient and agent equally. What could this
principle be? A principle, Gewirth answers, which recognizes agents’ and recipients’ generic
rights – rights to freedom and well-being (such as the protection of ‘life and physical
integrity’, prohibitions on ‘killing and physical assault (except in self-defense), … lying,
stealing, and promise-breaking’ and childrens’ need for ‘parental care’).163 Formulated in
terms of the Golden Rule, the principle will read: ‘Do unto others as you have a right that
they do unto you. Or, to put it in its Generic formulation: Act in accord with the generic
rights of your recipients as well as of yourself.’164
Ibid.
Ibid. 139.
160 See John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford UP, 1998), 126-8.
161 Gewirth, ‘The Golden Rule Rationalized’, 138.
162 Ibid. 139.
163 Ibid. 144.
164 Ibid. 139.
158
159
36
The limitation of the Golden Rule to generic rights-based action allows us to opt out
of certain forms of virtuous behaviour – charitable giving, for example, or good
samaritanism – because we have no right to the same treatment from strangers. Although it is
a mistake, as I have already argued, to make no distinction between following the Golden
Rule and other forms of other-regarding benevolent action, it will nevertheless be the case
that such action is sometimes motivated by Golden Rule reasoning: I did that for them
(rescued them, made a donation, etc.), even though I had no duty to do that for them,
because if I were in their situation I hope or expect someone would do the same for me.
Gewirth’s formulation of the Golden Rule does not accommodate those instances where an
agent acts for the recipient not because he has a right to expect, but because he would
appreciate, the same action from the recipient in similar circumstances. Gewirth answers this
objection by arguing that if the Golden Rule is not restricted to claims regarding generic
rights, ‘[i]f the agent were to claim rights to whatever he might want, … then not only would
there be a tremendous proliferation of right-claims, but the agent would also be aware that
he would be subject to an unmanageable barrage of right-claims from other persons.’165
For at least three reasons, this answer fails to meet the objection. First, the objection
is not based on Gewirth’s assumption that the recipient must have rights; rather, it is
assumed – Gewirth has given us no reason not to assume – that Golden Rule-motivated
action may have nothing whatsoever to do with what a recipient is entitled to as a matter of
right, generic or otherwise. Secondly, Gewirth makes no philosophical case when he claims
that ‘the agent must limit his claims to … the generic rights’.166 Rather, he makes a prudential
argument: an agent is well advised to do this so as ‘to avoid burdening himself’167 with
excessive duties to others. To argue that agents must limit their Golden Rule-following to
generic-rights based actions because otherwise they will have too much to do is to make no
case at all for limiting such Rule-following to these actions in particular. Finally, note the
scenario Gewirth envisages if the Golden Rule is not restricted thus: the agent will be able
‘to claim rights to whatever he might want’. Abandoning the restriction of the Golden Rule
to generic rights-based actions does not mean that there cannot be any other forms of
restriction on the types of action that can qualify as action suitable to following the Golden
Ibid. 143.
Ibid.
167 Ibid.
165
166
37
Rule. And even if it is accepted that an agent’s claims should not be unrestricted, this is not
in itself a reason for saying that such claims should be restricted to those involving generic
rights.168
The last of the philosophical defences of the Golden Rule that I want to consider at
this point is, I think, the most subtle and intriguing. The defence is, in this instance, bound
up with a broader argument: Richard Hare’s thesis – a logical rather than a moral thesis169 –
that moral judgements are universalizable prescriptive judgements. Consider, first of all, the
notion of prescriptivity. For Hare, it is in the character of a moral principle that we would
prescribe it for ourselves (even if we were, or if we imagine ourselves, in someone else’s
shoes). But if moral judgements are prescriptive, how can one accept any such judgement
and act contrary to it? Prescriptivism has to contend with weakness of the will – with the
fact, as Hare memorably puts it, that we are wont to take moral holidays.170 I know I ought
to (and could) be more charitable, and spend more time with my children, but I don’t; I
know I ought not to (and need not) take a short cut across the grass, but now and again I do.
‘Ought’ seems to be a ‘Janus-word’ which ‘can … look in the direction that suits its user’s
interests, and bur[ies] its other face in the sand’.171 Sometimes, having said ‘that we ought to
be doing’ something (and having intended to do that thing) but having failed to do it owing
to weakness of will (a failure of ‘moral strength’, as Hare puts it), we ‘still go on saying that
we thought that we ought’ to do whatever it is we failed to do without changing the meaning
of ‘ought’ as we have been using it all along.172
How can prescriptivism rise to this problem? When we say (with sincerity) that we
ought to act in a particular way and then fail to carry out the act, Hare answers, the problem
168 If it is accepted that such claims should be so restricted, there arises the problem of how the Golden Rule
ought to operate in those instances where there are ‘conflicts between the generic rights of the agent and of his
recipient.’ Ibid. 144. Again, Gewirth’s principal response is not philosophical argument but a prudential
assertion about quantity – ‘such conflicts are far fewer than the conflicts among desires taken indiscriminately’
(ibid.) – as if we might dispense with the problem simply by observing that it does not arise very often. In so
far as Gewirth does try to tackle the problem philosophically, his answer is that claims regarding generic rights
– rights which, ‘[i]f some agent were to deny that he has’ them, ‘he would contradict himself’ (ibid. 139) –
might be ranked in terms of their relative necessity for action: ‘the fact that the generic rights are derived from
the necessary conditions of agency provides a rational basis for resolving conflicts among specific rights. For,
other things being equal, one right takes precedence over another to the degree to which the former is more
necessary for action than is the latter. For example, A’s right not to be killed takes precedence over B’s right to
be told the truth when the two are in conflict’. Ibid. 144-5.
169 See Hare, Freedom and Reason, 30, 35, 192.
170 See R. M. Hare, Moral Thinking: Its Levels, Method, and Point (Oxford: Clarendon Press, 1981), 57-60
171 Hare, Freedom and Reason, 76.
172 Ibid. 75-6.
38
is not that we will not but that ‘[i]n a deeper sense’ we ‘cannot do the act.’173 Obsessivecompulsive behaviour – where one recognizes one ought to be relaxed, but cannot be
relaxed, about, say, stepping on cracks in pavements or touching door-handles – seems to be
what Hare principally has in mind.174 It seems odd to characterize such behaviour as
weakness of the will or failure of moral strength. Likewise it seems strange to conclude that
when we, for example, say that we ought, but we nevertheless fail, not to walk across the
grass then we must always be engaging in ‘purposive backsliding, or hypocrisy’, that this
cannot ever be a case of weakness of the will because the requisite will – the genuine
intention to do what we say we ought to do or have done – is not actually present.175 Such a
conclusion seems to require conjecture regarding our capacity for self-deception. We might
easily and reasonably speculate that in such an instance genuine intention could sometimes
be present, that I might say, sincerely, that I ought not to cut across the grass, and I could
intend not to do so, right up to the point when some other moral requirement (I ought to –
anyone in my position ought to – get to this meeting on time) eclipsed it.
Hare’s argument regarding the universalizability of moral judgements matters more
for our purposes than does his claim that such judgements are prescriptive. Of ‘any singular
descriptive judgement’ we might say – Hare considers the proposition ‘unobjectionable’ –
that it is ‘universalizable’ in the sense that ‘anything like the subject of the … judgement, or
like it in the relevant respects,’176 must be judged in the same way. My description of the
tomato as red commits me to describing all other tomatoes that are like it, or like it in
relevant respects, as red; that there may be tomatoes that I describe as, say, green is
attributable to the fact that these (unripe) tomatoes are recognizably different from the red
ones. Formulated in terms of descriptive judgements the thesis – we describe the things that
appear alike as alike and things that appear different as different – is, Hare concedes,
‘apparently trivial’.177
The thesis becomes more interesting and powerful, however, when we employ it in
moral argument. A ‘moral principle’, according to Hare, ‘has got to be universal’.178 Anyone
who considers a certain action morally right or wrong is thereby committed to taking the
Ibid. 82.
See ibid. (‘compulsive neuroses’).
175 Ibid. 82-3.
176 Ibid. 12.
177 Ibid.
178 Ibid. 46-7.
173
174
39
same view of any other relevantly similar action: ‘to make different moral judgements about
actions which we admit to be exactly or relevantly similar’179 is to be self-contradictory. If it
is wrong for me to act in a certain way in particular circumstances then in those
circumstances, or relevantly similar ones, it should be wrong for anyone else to act in that
way. It is in the nature of moral prescriptions, in other words, that they are universalizable.
Universalizability is the test for whether any proposed action is morally acceptable to
us.180 ‘[I]n facing … moral questions … as questions of moral principle’ we must ask
ourselves: ‘[t]o what action can I commit myself in this situation, realizing that, in
committing myself I am also (because the judgement is a universalizable one) prescribing to
anyone in a like situation to do the same’?181 The Golden Rule, though it is not to ‘be
confused with the thesis of universalizability’,182 can be interpreted as a universalized
prescription: to prescribe, ‘treat others as you would have them treat you’ is to say that we
should only act as we would have others act in essentially the same situation. Note that
Hare’s version of the Golden Rule is necessarily couched in the imperative.183 A
conditionally-formulated Golden Rule – treat others as we would like them to treat us –
would require that we treat others as we would like to be treated in situations where we are
Ibid. 33.
See ibid. 89-90. The action does not have to be taken. The test, rather, is whether the action is acceptable to
us ex hypothesi: see ibid. 92-4.
181 Ibid. 47-8; and see also 199. Note that this does not mean that we must always be passing judgement on
others. Leaving aside the fact that it is normally tactful to keep one’s opinions to oneself, it is also the case that
‘we cannot know everything about another actual person’s concrete situation’ and so cannot presume that their
situation is similar to ours. Ibid. 49. A similar argument is advanced by John Finnis when he observes that it is
transparent to any particular person how his or her choices impact on his or her character but it is not
transparent to that person how other people’s choices relate to their characters. I may dislike what someone
chooses to do but, since the grounds for the choice(s) are unclear to me, this is no reason to condemn (the
character of) that person. See John Finnis, Fundamentals of Ethics (Washington, DC: Georgetown UP, 1983),
140-2; ‘Legal Enforcement of “Duties to Oneself”: Kant v. Neo-Kantians’ (1987) 87 Columbia L. Rev. 433, 438
n 21. The problem of transparency becomes obvious when we consider the case of treating someone harshly
because we believe that this is what they deserve. We might try to justify such behaviour on the basis of the
Golden Rule: such treatment is deserved because, were it us in their position, it is essentially the treatment that
we think we would deserve. But of course it is not us but them in their position, and without insight into what
has motivated their action we cannot truly make a judgement of them or their character. All we can do is judge
their action. This insight is crucial, I think, to understanding why liberalism does not require a commitment to
neutrality as between conceptions of the good (a point to which I return later).
182 Hare, Freedom and Reason, 34.
183 A case has to be made for couching the Golden Rule in the imperative, he appreciates, and he tries to show
that, in the biblical context, the case can be made. See R. M. Hare, ‘Euthanasia: A Christian View’ (1975) 6
Proceedings of the Center for Philosophic Exchange 43, 44. The case that he makes receives some exegetical support in
Georg Strecker, ‘Compliance – Love of One’s Enemy – the Golden Rule’ (1981) 29 Australian Biblical Review 38,
44.
179
180
40
in another’s position with that other’s likes and dislikes: the prescription could only be
accepted for universal application if everybody had the same preferences.
Since we differ in our preferences, what can it mean to say that we should treat
others as we would have them treat us? If ‘others’ is taken to mean ‘others as imagined with
our preferences’ then the Golden Rule is: ‘treat others as we would want to be treated’. The
poverty of Golden Rule reasoning understood as an imaginative act performed from our
own perspective is obvious if we consider such reasoning in the context of jury instruction.
Isocrates, in one his forensic speeches, pleads for the jury ‘to give a just verdict, and prove
yourselves to be for me such judges as you would want to have for yourselves.’184 But if a
jury was able to place itself in my, or my client’s, shoes and ask what it would then want, its
answer would not necessarily make for a just verdict. Many an instance can be found in U.S.
federal case-law of courts, particularly in cases where jurors determine the levels of damages
awards, ruling it improper for counsel to ask jurors to try to imagine what they would want
were they, or one of their loved ones, in their client’s (usually the plaintiff’s) shoes.185 Golden
Rule reasoning is not completely ruled out in such instances. Such reasoning is often
considered permissible, for example, where counsel’s question to the jury is framed not in
terms of desire (‘how much would you want awarded if this had happened to you, or
someone close to you?’) but in terms of reasonable action (‘had you been in the plaintiff’s
position, knowing the floor was still wet, would you have run across it?’),186 and even if it is
considered improper it might still not be declared a reversible error necessitating a retrial if
the jury receives clear instruction from the judge that the argument must be disregarded,187 if
the argument is withdrawn by counsel,188 if it is clear from the modesty or reasonableness of
the damages award that the jury was not moved by the argument,189 or if a court decides that
it can offset the prejudicial effect of the argument by reducing the amount of damages
Isocrates, Aegineticus (c. 394 BC), 50-1, in Isocrates: Volume III, trans. L. van Hook (Cambridge, Mass. Harvard
UP, 1945), 329.
185 See generally Kevin W. Brown, ‘Propriety and Prejudicial Effect of Attorney’s “Golden Rule” Argument to
Jury in Federal Civil Case’ (2006) 68 ALR Federal Supplement 333; L. S. Teller, ‘Taking Position of Litigant’
(1960) 70 ALR2d 935.
186 See, e.g., Stokes v Delcambre, 710 F2d 1120 (La. 1983); Johnson v Celotex Corp., 899 F2d 1281 (NY 1990);
Duerden v PBR Offshore Marine Corp., 471 So. 2d 1111 (La. App. 3d Cir. 1985).
187 See, e.g., Young v Armadores de Cabotaje, 617 So. 2d 517 (La App. 4th Cir. 1993).
188 See, e.g., Duchaine v Ray, 6 A2d 28 (Vt. 1939); Texas & N. O. R. Co. v New, 95 SW2d 170 (Tex. Civ. App.
1936).
189 See, e.g., Crosswhite v Barnes, 139 Va. 471, 124 SE 242, 40 ALR 54 (1924); Bates v Kitchel, 166 Mich. 695, 132
NW 459 (1911).
184
41
awarded by the jury.190 But in U.S. civil litigation Golden Rule reasoning more often than not
is considered prejudicial, primarily because the imaginative leap that jurors are being asked to
make compromises their impartiality – they are trying to put themselves in the position of
one party and not the other – and has them focus on their emotions rather than on the trial
evidence.191 Following the Golden Rule is likely to militate against rather than facilitate the
achievement of fairness, so the argument goes, if ‘treat others’ is interpreted to mean ‘treat
others as imagined with our preferences’.
So, how else might we interpret ‘others’? The obvious answer is: ‘others as imagined
with their own preferences’. While I might be able to imagine what I would feel were I you
in these circumstances, and even, recalling my own reactions in a similar situation, what you
must feel, I cannot know what you feel, for I cannot be you.192 There will be instances,
furthermore, when I think I know how I would want to be treated were I in your
circumstances but, having never experienced or even thought about similar circumstances,
would be rash to purport to know how you will want to be treated. Singer, we saw, made
light of this difficulty, insisting that Golden Rule reasoning does not require ‘if I were he’
thinking. But we also saw that Singer could not avoid formulating such reasoning in terms of
the agent having to think of himself as if he were the recipient. For Hare the Golden Rule,
understood as a universalized prescription, requires the agent to ask himself not ‘how would
you like it if this was done to you?’ but ‘[w]hat do you say … about a hypothetical case in
which you are in your victim’s position?’193 The common philosophical objection to this
formulation is that the person in the hypothesized position (the victim) and the person
legislating for it (you) are different people with different, possibly radically different, values
and preferences, and so, if it is possible for you to make the imaginative leap, to put yourself
in your victim’s shoes, it is not clear what, if anything, of you will be retained once you have
put yourself there.194 A particularly clear illustration of the problem can be found in
Harsanyi’s attempt, considered earlier, to show how following the Golden Rule in such a
way as to maximize average utility requires that I make ‘interpersonal’ comparisons by
See, e.g., Johnson v Stotts, 344 Ill. App. 614, 101 NE2d 880 (1951).
See, e.g., Chicago & N. W. R. Co. v Kelly, 84 F2d 569 (Minn. 1936); Ivy v Security Barge Lines, Inc., 585 F2d 732
(Miss. 1978); Johnson v Colglazier, 348 F2d 420 (Tex. 1965); Klotz v Sears, Roebuck & Co., 267 F2d 53 (Ill. 1959).
192 See C. C. W. Taylor, review of Freedom and Reason (1965) 74 Mind 280, 288-90.
193 Hare, Freedom and Reason, 108.
194 See, e.g., Taylor, review of Freedom and Reason, 286-8; Mackie, Ethics, 92-3. Cf. Hare, Moral Thinking, 119-21
where he offers a brief defence of his position to the effect that putting yourself in someone else’s shoes
requires only the supposition that you lose your set of properties and acquire another’s.
190
191
42
imagining myself as different people living in societies with different policies:
Simple reflection will show that the basic intellectual operation in such interpersonal
comparisons is imaginative empathy. We imagine ourselves to be in the shoes of another
person, and ask ourselves the question, ‘If I were now really in his position, and had his taste,
his education, his social background, his cultural values, and his psychological make-up, then
what would now be my preferences between various alternatives, and how much satisfaction
would I derive from any given alternative?’195
All I can do is imagine satisfying these conditions. I cannot satisfy them.196 Asking
myself what my preferences would be if I had somebody else’s ideals, properties, tastes and
so on is rather like hoping to discover how weightlessness feels by imagining myself as an
astronaut in space. The main problem with interpreting ‘others’ to mean ‘others with our
preferences’ is that it excuses our imposing our tastes on others in the name of following the
Golden Rule. The main problem with interpreting ‘others’ to mean ‘others with their
preferences’ is that it is not clear how we might speak meaningfully of our putting ourselves
in the position of others with their preferences. But what other plausible interpretations
might there be?
One possibility is to negate, or at least minimize the significance of, preferences.
Rawls’s original position provides perhaps the most obvious example of negation: deciding
on principles of justice behind a veil of ignorance requires that we act without knowing our
social status and position, our natural assets and abilities and our conceptions of the good or
psychological propensities, the assumption being that ignorance of these details about
ourselves will lead us to treat others as we would want to be treated were we to discover, on
the veil’s being lifted, that we were among the least well-off in society. But all this amounts
to is a formulation of the Golden Rule in Rawlsian terms – treat others as you would have
them treat you if it transpired that you were among the least advantaged. Reasoning from a
hypothetical original position provides us with no insight into Golden Rule-following as an
actual human activity because when we do apply the Golden Rule we are not unaware of our
preferences. Harsanyi, in his attempt to show not how parties without advance knowledge of
their social position will settle on principles of justice but how they will seek to maximize
average utility, minimizes the significance of preferences – not by trying to assume them
Harsanyi, ‘Morality and the Theory of Rational Behavior’, 638.
See Alfred F. MacKay, ‘Extended Sympathy and Interpersonal Utility Comparisons’ (1986) 83 Jnl of
Philosophy 305, 317-9.
195
196
43
away but by postulating that base-preferences do not differ very much from one person to
the next: ‘once proper allowances have been made for … empirically given differences in
taste, education, etc., between me and another person, then it is reasonable for me to assume
that our basic psychological reactions to any given alternative will be … much the same.’197
This ‘similarity postulate’198 makes ‘treating others as I imagine them with my preferences’
and ‘treating others as I imagine them with their own preferences’ barely distinguishable
propositions, for it requires me to suppose that recipients of my treatment have ‘much the
same’ reaction-relevant characteristics as I do. If I do suppose this, I may as well follow the
Golden Rule on the basis of my own ‘psychological reactions’ to given alternatives. The
similarity postulate provides us with a reason for assuming imaginative empathy to be of no
great importance.199
We would do better, I think, not to negate or minimize the significance of
preferences, nor to try to follow the Golden Rule only by reference to what we would want
or by reference to what we imagine the recipient would want, but rather to try to discover
reasons for action by considering both our own and what we imagine to be the recipient’s
perspective. When Golden Rule reasoning amounts to a sincere effort to consider matters
from both these perspectives, Hobbes believed, the possibility of agents acting selfishly is
banished: ‘when weighing the actions of other men with his own,’ that is, the follower of the
Golden Rule discovers ‘that his own passions, and self-love, may add nothing to the
weight’.200 This argument – essentially an extension of Hobbes’s claim (considered earlier)
that the Golden Rule inclines us to behave moderately rather than oppressively – is
simplistic. And of course trying to imagine our recipient’s perspective does not mean that we
can know that perspective. I do not think we should conclude from either of these
observations, however, that empathetic identification must always be either impossible or
pointless. Although we cannot be our recipients, and although we cannot know just how
much of ourselves we would have to put into our recipient’s shoes in order to identify with
them, we way be able to imagine and identify with some of their experiences or
predicaments (just as we are able to do with fictional characters). And while the effort at
imagination will not be actual experience it will sometimes enable us to make a reasonable
Harsanyi, ‘Morality and the Theory of Rational Behavior’, 639.
Ibid.
199 See MacKay, ‘Extended Sympathy and Interpersonal Utility Comparisons’, 322.
200 Hobbes, Leviathan, I. xv. 35.
197
198
44
guess at what a recipient would consider appropriate treatment in particular situations.
We know, of course, that the human capacity for considering all manner of
treatment, even inhuman treatment, appropriate can sometimes make Golden Rule
reasoning seem perverse. Hare asks us to consider the ‘fanatic’ who is willing to endure the
displeasure he is keen to impose.201 For most people, universal prescriptivism will reveal the
intolerability of fanaticism, for it shows that we should not pursue actions which we would
have others, in like instances, desist from pursuing. We have to ask ourselves, that is,
whether we would be prepared to prescribe that our own inclinations be disregarded in the
way that we are disregarding our neighbour’s. That we might be so prepared, even when the
consequences are the worst imaginable, is not inconceivable. The Nazi who desires that all
Jews be exterminated might just discover that he is a Jew. By universalizing his moral
judgement in this instance, he reveals his extreme fanaticism: as Hare puts it, ‘nobody but a
madman would hold’ that, on this discovery, they too should be sent to the gas chambers.202
Yet, Hare concedes such fanatics may well exist, and ‘golden-rule arguments seem powerless’
against them in so far as they can provide, say, the Nazi who discovers he is a Jew, with no
reason not – we might, indeed, say that they provide him with the reason – ‘to immolate
himself at the service of his ideal’.203
Hare’s universal-prescriptivist defence of Golden Rule reasoning is, he readily
concedes, ‘of a more or less Kantian sort.’204 The defence requires we recognize that such
reasoning will often be multilateral (we are, after all, universalizing our judgements with
respect to all others affected by them), and that in the multilateral scenario the agent will
have to decide to which ‘other’ his duty is owed. The decision demands of us, Hare thinks, a
mixture of imagination and (preference) utilitarianism.205 It is hardly surprising that a moral
philosophy which embraces elements of Kantianism and utilitarianism and defends Golden
Rule reasoning (which, remember, Kant dismissed as trivial) should have been the subject of
an immense amount of philosophical debate.206 The general debate – whether
universalizability is a very different concept in Hare’s philosophy than it is in Kant’s, whether
Hare, Freedom and Reason, 112.
Ibid. 172, and see also 220-1.
203 Ibid. 175, 192.
204 R. M. Hare, ‘A Kantian Approach to Abortion’ (1989) 15 Social Theory and Practice 1, 5.
205 See Hare, Freedom and Reason, 123.
206 See, e.g., Hare and Critics: Essays on Moral Thinking, ed. D. Seanor & N. Fotion (Oxford: Clarendon Press,
1988).
201
202
45
Hare successfully demonstrates the compatibility of universal prescriptivism and
utilitarianism, and so on – has to be left to one side. Suffice it to say for our purposes that
Hare wants us to consider the type of moral reasoning that he recommends as an exercise in
moral exploration.207 Most people – leave aside the genuine fanatic – are prevented from
accepting certain moral judgements because those judgements entail logical consequences
which they cannot accept. Unless we are prepared to disregard anyone’s desires, even our
own, we are compelled to give weight to the desires of one’s neighbours. So it is, for Hare,
that toleration ‘is the logical consequence of universalizability, when coupled with
prescriptivity.’208 Our capacity to imagine the predicament of another ‘as if it were really
going to happen to us’ means that we can think about pains, injuries, deprivations and so on
in terms of what they would mean for us in a ‘hypothetical similar situation’.209 It is precisely
this capacity that stops most of us from becoming fanatics.
4. Following the Golden Rule: Assistance and Abortion
The Golden Rule could never successfully be put to the service of all moral theorizing.
There are, as Hare observes, some moral questions – questions which, though they might
involve consideration of others, are essentially about ourselves and our characters (what sort
of people we want to be) – to which Golden Rule reasoning cannot supply answers.210 What
should be clear, nevertheless, is that universal prescriptivism makes it reasonable to conclude
that the Golden Rule is a principle of moral action which requires that agents do more than
merely project their own values and desires onto others. This is neither to claim that the
principle nor the moral reasoning in it which is being grounded is unassailable: I hope that
my outline of universal prescriptivism has been sufficiently detailed to show that it is not an
easy philosophy to defend, and that even Hare recognizes that it does not explain the moral
wrongness of genuine and consistent fanaticism.211 It is to claim, however, that universal
prescriptivism has provided us with a conception of the Golden Rule sufficiently robust to
See ibid. 193.
Ibid. 195, and see also 198.
209 Ibid. 197
210 See ibid. 138-50.
211 Hare came to argue that only a ‘pure’ fanatic who is able consistently to hold his position even after
reflecting critically on it and recognizing its inconsistency with rational choice presents a difficulty for universal
prescriptivism, and that such a fanatic, though logically conceivable, never exists in reality. See Hare, Moral
Thinking, 169-87.
207
208
46
be worth putting to the test. Let us consider the Golden Rule interpreted as a universal
prescription in relation to two ethical problems.
a. Assistance
I have argued already that following the Golden Rule is distinguishable from good
samaritanism. A separate question is whether the Golden Rule compels good samaritanism
when a potential recipient is in need. Academic lawyers sometimes express dismay over the
absence from the common law of a general duty to rescue.212 In civilian systems, such a duty
is more often than not set down in the national penal code. But the common law limits the
duty to special relationships (parents to children, police officers to the public, and so on). It
is difficult to say why this should be the case. Possibly the need to establish a general duty to
rescue has been somewhat diminished given that the range of special duties has been
regularly extended and that courts, and particularly legislatures, have been effective in
encouraging various forms of supererogatory action.213
Does Golden Rule reasoning support the creation of a general duty to rescue? If we
try to imagine ourselves in the position of the person needing to be assisted or rescued in a
situation in which their well-being or life is under threat and ask ourselves what we would
want done for us in that position, our answer will probably be that we would want
somebody to step in and help. But this should not lead us to deduce that there must be a
duty for somebody to step in and help. Sometimes we will contemplate the suffering of
others and conclude that, were our positions reversed, we would not consider them obliged
to try to alleviate our suffering – because, for example, of the very strong likelihood that
their intervention would result in their death – notwithstanding our aversion to suffering
thus. It is tempting to think also that our decision as to how to treat the imperiled depends
on whether they are physically remote. Common intuition tells us that the distance between
potential rescuers and imperiled strangers is morally significant: faced with a choice between
The literature is vast. See, e.g., Charles O. Gregory, ‘The Good Samaritan and the Bad: The Anglo-American
Law’, in The Good Samaritan and the Law: The Morality – and the Problems – of Aiding Those in Peril, ed. J. M. Ratcliffe
(Garden City, NY: Doubleday, 1966), 23-41; Ernest J. Weinrib, ‘The Case for a Duty to Rescue’ (1980) 90 Yale
L. J. 247; Kathleen M. Ridolfi, ‘Law, Ethics, and the Good Samaritan: Should There be a Duty to Rescue?’
(2000) 40 Santa Clara L. Rev. 957.
213 On encouragement, see, e.g., Antony M. Honoré, ‘Law, Morals and Rescue’, in The Good Samaritan and the
Law, pp.225-42; Hanoch Dagan, ‘In Defense of the Good Samaritan’ (1999) 97 Michigan L. Rev. 1152.
212
47
intervening in two cases which are identical on the facts apart from that in the first case
imperilment is physically close and in the second it is not, people are likely to feel a greater
responsibility to intervene in the first case rather than the second.214 But in the case of
Golden Rule reasoning and the notion of a general duty to rescue I think there is a different
intuition at issue, an intuition which is not essentially about proximity. Our failure to rescue
the imperiled but remote will usually be attributable not to our greater sense of responsibility
to someone or some group imperiled but closer to home, but to our intuition that,
irrespective of proximity, we cannot be held responsible for all of the consequences which
we foresee will result from the choices we make. I may well know the likely consequences of
choices I make, but it is ‘characteristic of very bad degenerations of thought’, as Elizabeth
Anscombe put it, to say that because I foresee those consequences I must therefore intend
and be responsible for all of them.215 When I follow the Golden Rule close to home I may
be rescuing nobody: it has certainly not escaped my attention that all that time refereeing
manuscripts, writing references, looking after the neighbour’s cats and so on could have
been spent working for the Samaritans, trying to save Brazilian street children, distributing
food parcels in Ethiopia, or on many other rescue projects near and far. But I think it would
be wrong to conclude (though it seems some moral philosophers would conclude216) that my
choosing to follow the Golden Rule in the ways that I do makes me responsible for the
suffering and deaths of many people both at home and abroad.
It is quite often assumed that the principal reason there is no general duty to rescue
at common law is that is difficult to specify the circumstances in which such a duty should
arise. ‘It is … difficult to find the boundaries of the duty’, one civil lawyer has observed, ‘and
therefore it is difficult for potential rescuers to know whether they have to intervene and if
so, when their duty to assist ends.’217 This problem is no doubt real. However, if the fact that
a legal principle is vague were a sufficient ground for repudiating it, there would – certainly
See F. M. Kamm, ‘Does Distance Matter Morally to the Duty to Rescue?’ (2000) 19 Law & Philosophy 655.
G. E. M. Anscombe, ‘Modern Moral Philosophy’ (1958) 33 Philosophy 1, 11.
216 See, e.g., John Harris, ‘A Philosophical Case against the Philosophical Case against Euthanasia’, in Euthanasia
Examined: Ethical, Clinical and Legal Perspectives, ed. J. Keown (Cambridge: Cambridge UP, 1995), 36-45 at 40
(‘For me the agent chooses the world which she voluntarily creates, the world which she could have chosen not
to create or to create differently, the world which results from her actions (or conscious omissions). I believe
that we are responsible for the whole package of consequences which we know will result from the choices we
make’).
217 Jan M. Smits, The Good Samaritan in European Private Law: On the Perils of Principles without a Programme and a
Programme for the Future (Deventer: Kluwer, 2000), 30.
214
215
48
in the common law – be very few principles. The more serious problem, according to Ernest
Weinrib, is whether the indeterminacy of a rescue principle is legally manageable.218 But
manageability may be a problem even in what seem to be the most uncontroversial rescue
cases. Consider a principle – one which Weinrib favours219 – which only obliges potential
rescuers to come to the aid of the imperiled when it is easy for them to do so. ‘It would be
unreasonable to reject a principle’, Scanlon argues, which holds that ‘if you are presented
with a situation in which you can prevent something very bad from happening, or alleviate
someone’s dire plight, by making a slight (or even moderate) sacrifice, then it would be
wrong not to do so.’220 The difficulty with this principle of ‘easy rescue’ conceived as a legal
principle is not so much its vagueness as its enforceability. The strongest swimmers at the
beach are the ones who should be able to save the dire plight of the drowning child by
making only a slight or moderate sacrifice. But if, for whatever reason, none of the strongest
swimmers reveals their hand, it will probably be impossible to show that anyone is in breach
of their legal duty.
In some circumstances we take the view that although it would be wrong never to
provide the assistance, it would be unreasonable to say that we are morally bound always to
provide assistance: I would have felt bad had I not put money in one of the various charity
collector’s boxes as I walked down the high street, but I did not feel bad for not putting
money in all of them, notwithstanding that I considered all of the charities equally deserving.
To say that if I ought to assist in case A then I ought to assist in all cases that I consider
indistinguishable from case A as well is to cast the moral net too wide. Jeremy Waldron puts
the point in Kantian terms: a general duty to rescue cannot be a perfect duty.221 For our
purposes the point worth emphasizing is at the heart of John Mackie’s critique of Hare: that
even when universal prescriptivism does require a particular action, it will not be ‘the logic of
“ought” alone’ but also the many subjective elements in our reasoning that determine what
we do.222 The point can be formulated in terms of the Golden Rule: in many instances –
giving to beggars, giving way to other drivers trying to get onto busy roads and so on – we
may be able to help and may appreciate that, were we in the recipient’s shoes, we would
See Weinrib, ‘The Case for a Duty to Rescue’, 275.
See ibid. 268-92.
220 T. M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Belknap Press, 1998), 224.
221 See Jeremy Waldron, ‘On the Road: Good Samaritans and Compelling Duties’ (2000) 40 Santa Clara L. Rev.
1053, 1071-2.
222 See Mackie, Ethics, 99-102.
218
219
49
appreciate the help, yet, having universalized the moral judgement, we still might feel no
compulsion to help in every such instance we encounter.
Hare himself offers a characteristically unique perspective on the duty to assist
(‘rescue’ would be the wrong word to use in relation to the problem with which he presents
us). In a short essay written in the early 1970s, he offers the ‘unusual case … which did
actually happen some time ago and was reported in the press’ of a ‘driver of a petrol lorry’
whose ‘tanker overturned and immediately caught fire.’ The driver ‘was trapped in the cab
and could not be freed. He therefore besought the bystanders to kill him by hitting him on
the head, so that he would not roast to death.’ (‘I think somebody did this,’ Hare adds, ‘but I
do not know what happened in court afterwards.’) If you accept that you should do to others
what you wish that they should do to you, and if you ‘ask yourselves … what you would
wish that men should do to you if you were in the situation of that driver’, Hare conjectures,
‘I cannot believe that anybody who considered the matter seriously … would say that the
rule should be one ruling out euthanasia absolutely.’ Application of the Golden Rule
(conceived as a universal prescription) will not, in other words, lead us to the conclusion
‘that euthanasia is always and absolutely wrong.’223
The incident which Hare had in mind took place in September 1959, more than a
decade before he wrote about it, so it is understandable that he should have been unsure as
to the facts and what was decided in court. Yet the facts provide us with reason to be
somewhat sceptical about Hare’s argument. According to the report in The Times, when the
lorry’s engine caught fire and its cabin was engulfed with flames and fumes, the driver –
who, it is reported, despite the extremity of the situation ‘remained very calm’ – asked
bystanders not kill him but to render him unconscious. The coroner concluded not only that
the blow delivered to the driver could not have caused death in a man of the driver’s build
but that the bystander who delivered it only intended the driver to lose consciousness.
Notwithstanding that the intervention was risky and dangerous, undertaken ‘in the stress of
the moment and on … impulse’, it seemed to be motivated by a desire ‘to cause
unconsciousness [in the driver] at the very last moment when it was felt that there was
nothing further that could be done.’ The jury returned a verdict of accidental death.224
Hare, ‘Euthanasia’, 45.
For all of this information, and all the quotations, see ‘Trapped Driver “Knocked Out”: Dying Appeal to
Rescuers’, in The Times, 15 Sept. 1959, at p.7.
223
224
50
Hare’s conception of euthanasia – deliberately killing a person out of kindness – is
perfectly valid.225 But note that it is not the nowadays more common understanding of the
term, according to which it is presumed that the killer has some special responsibility to the
person (or animal) to be killed. Since, both in Hare’s and in the reported version of events,
the bystander appears not to have been a doctor and did not know the sufferer, any
conclusion drawn from either version is best treated as a conclusion about the morality of
mercy killing simpliciter rather than mercy killing as, say, a medical intervention. The
newspaper report of the event is, I think, morally more interesting than is Hare’s example
and his interpretation of it. If we ask ourselves what we would wish that someone would do
to us if we found ourselves in the situation of the driver we would no doubt wish, as the
driver did wish, for an end to our suffering. But this does not mean that we would wish,
indeed it seems unlikely that we would wish, for a bystander to end our life. The point is not
so much that we might hope for some sort of last-minute reprieve – the arrival of the
emergency services, the sudden unwedging of a door, or whatever – as that we recognize,
whatever our particular values and preferences, the unreasonableness of asking a bystander
to make this particular choice. It is precisely by applying the Golden Rule here that we come
to grasp that it is not a basic moral principle: to ask what we would wish that another would
do to us if we found ourselves in a similar situation is to ask what we could and could not
reasonably ask another person to do in such a situation. Hare applied the Golden Rule to the
lorry driver’s plight to demonstrate ‘a very limited and negative conclusion’ – that euthanasia
cannot always be wrong.226 I cannot see that he succeeded.
b. Abortion
Assistance-based arguments sometimes find their way into debates about abortion. One
author has argued recently, for example, that although embryos, if they are to become
babies, need the help of the women who carry them, to say that pregnant women are obliged
to provide this help is discriminatorily to deny those women their ‘personal self-
225
226
For an elaboration of this basic conception, see Foot, Virtues and Vices, 33-61.
Hare, ‘Euthanasia’, 45.
51
government’227 – to deny them a right, that is, to determine if they are ‘capable of …
nurturing a fetus and, ultimately, mothering a child’.228 To place on fertile women a duty of
assistance by denying them a right to an abortion during the early stages of pregnancy is to
treat them unfairly, according to this argument, because the denial places on them a potential
burden – of unwanted pregnancy and child-birth – that is not borne by others. Neither to
cite a right to personal self-government nor to bemoan the asymmetric burden is to make a
compelling argument in the case of the woman who willingly engaged in intercourse which
she knew could result in pregnancy but who has now decided that she is unwilling to carry a
baby to term. The argument does become compelling, however, where the woman becomes
pregnant against her will (because contraception fails, for example, or because she is raped)
and so is faced with a burden which she never wished to assume and which most people will
never have to take on.229 Why impose a duty to assist in such an instance?
One Golden Rule-based answer to this question is that allowing women to abort
unwanted pregnancies is to remedy one injustice with a different one: the asymmetric burden
is dispensed with, but at the cost of subjecting another – the foetus – to treatment which we
would not have wanted to be subjected to ourselves. Later in this study, I shall consider the
argument that this second injustice is not merely a different but is in fact the greater one –
that neither the burden borne by nor the right to self-government denied to women faced
with unwanted pregnancy can be considered a wrong equal to that of deliberately killing the
unborn. But first I want to examine Hare’s universal-prescriptivist approach to the problem.
We head up a blind alley, Hare begins, if we frame the abortion debate in terms of whether
the foetus is a person. Settling that debate one way or another is impossible, for ‘person’ can
have several different meanings. But what we do know is that, whether or not we consider
the foetus a person, it has the potential to become a person.230 Golden Rule reasoning shows
us ‘why the potentiality of the fetus becoming a person raises a moral problem’,231 for if we
modify the wording of the Golden Rule and say that ‘we should do to others what we are glad
227 Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Resposnibility (Cambridge, Mass.:
Harvard UP, 2006), 228. See also Emily Jackson, Regulating Reproduction: Law, Technology and Autonomy (Oxford:
Hart, 2001), 73-4, 76, 133.
228 McClain, The Place of Families, 230.
229 See J. J. Thomson, ‘A Defence of Abortion’, in The Philosophy of Law, ed. R. M. Dworkin (Oxford: Oxford
UP, 1977), 112-128.
230 See R. M. Hare, ‘Abortion and the Golden Rule’ (1975) 4 Philosophy & Public Affairs 201, 207; ‘A Kantian
Approach to Abortion’, 1.
231 Hare, ‘Abortion and the Golden Rule’, 207.
52
was done to us’ then, ‘[i]f we are glad that nobody terminated the pregnancy that resulted in
our birth, then we are enjoined not, ceteris paribus, to terminate any pregnancy which will result
in the birth of a person having a life like ours.’232 Such reasoning ‘has a secure logical
foundation’233 – universal prescriptivism – since it ‘requires us to make the same moral
judgment about … cases which are relevantly similar.’234 It is difficult, though perhaps not
impossible, to imagine a woman genuinely and consistently wishing that she herself had
never been born and citing this as a reason for being entitled to seek an abortion.235 Even
those who do feel this way do not have a reason supporting abortion, Hare argues, because
they will ‘wish that, if they had been going to be glad that they were born’ – if they would have
been glad to have been born but for the way life has worked out for them – ‘nobody should
have aborted them.’236 Golden Rule reasoning, it seems, should ‘give cheer to the
antiabortionists’.237
But such reasoning, Hare thinks, does not only support the position of the antiabortionist. A woman might make ‘a choice between having this child now and having
another child later.’238 Her carrying to term now means that there are other, possibly
conceivable, children that she will not have, children who either cannot be conceived
Ibid. 208.
Ibid. 211.
234 Ibid. 208-9. It is worth noting here the question of whether the Golden Rule extends to animals. For a very
well-formulated, prescriptivist-based argument that it must do, see Tom Regan, The Case for Animal Rights
(Berkeley: University of California Press, 1983), 232-65. I am not convinced. To say that we should treat
animals as we would have them treat us is an unintelligible moral requirement. But one has to be careful not to
reduce this argument to the claim that animals cannot be entitled to treatment according to the Golden Rule
because they cannot themselves follow the Golden Rule. The reason, I think, that the Golden Rule does not
extend to animals is that we cannot say in the case of animals in the same way as we can say of other human
beings (including non-sentient human beings) what it is that we would want were we in their position. The
problem is not that of lacking the capacity to imagine an experience – I agree with Hare (Freedom and Reason,
222-3) that we can imagine, in particular, the pain that animals can suffer (so it is that we enact laws proscribing
animal cruelty) – but that we cannot understand animal selfhood as we understand human selfhood.
235 The case of Nicolas Perruche, the French boy born with congenital rubella who was in effect compensated
for wrongful birth, is sometimes presented – probably because the Cour de Cassation ruled that he had a right
to sue his mother’s physicians – as if he himself brought an action against the medical authorities for
unhappiness at being born. But Perruche was neither able to sue because of, nor to express happiness or
unhappiness about, the fact that he was born. It was his parents who sued (and who also were compensated),
claiming both that their son had suffered harm by the very fact of his birth and that they had suffered harm
because, had the laboratory not botched the test for rubella while Nicolas was still in the womb, his mother
would have sought – during her pregnancy, she had said that in the event of a positive test she would seek – an
abortion. See Axel Gosseries, Penser la justice entre les generations: De l’affaire Perruche à la réforme de retraites (Paris:
Flammarion, 2004).
236 Hare, ‘Abortion and the Golden Rule’, 209.
237 Ibid. 206. For a similar argument, see also Harry J. Gensler, ‘A Kantian Argument Against Abortion’ (1986)
49 Philosophical Studies 83.
238 Ibid. 211.
232
233
53
because the woman is pregnant or who will not be conceived because the parents may, after
the birth of this child, decide to use contraception. Hare finds it strange that anti-abortionists
oppose stopping the birth of the child conceived now ‘but say nothing’239 about stopping the
birth of the child that might be conceived later. If a child has not been conceived, it seems a
mistake to talk of stopping its birth. Of course, its conception might be stopped – but this
cannot be what Hare has in mind, for contraception is hardly a topic about which antiabortionists have ‘nothing’ to say. However, let us work through his argument. S, like most
of us, is glad that she was born, and if she is glad that she was born she must be glad that her
parents procreated. This means, applying Golden Rule reasoning, that S has a duty neither to
abort nor to abstain from procreation. But S cannot fulfil this duty both to the unborn child
currently in her womb and to any other children that her current pregnancy stops her from
conceiving: for S, ‘it is either this child or the next one but not both’.240
Where this clash of duties arises and S knows that the present foetus will be born
‘miserably handicapped’ but has ‘every reason to suppose next child will be completely
normal and as happy as most people,’ she will have a ‘reason to abort this fetus and proceed
to bring to birth the next child, in that the next child will be much gladder to be alive than
will this one.’241 In such a situation there will still be defeasible presumption against abortion,
because with the termination of the present foetus the probability of the woman conceiving
another child reduces (because parents separate, die, become sterile and so on).242 But the
argument shows us, Hare believes, that the presumption against abortion is not as strong as
anti-abortionists maintain.
If we are glad to be born, then ‘not to produce any single child whom one might
have produced lays one open to the charge that one is not doing to that child as one is glad
has been done to oneself (viz. causing him to be born).’243 So does Hare’s basic Golden Rule
argument – leaving aside, that is, the predicament faced by S – establish a case for unlimited
procreation? Hare himself thinks not: genuinely unlimited procreation would lead to an
overpopulated world, and there would come a point at which new births would impose
‘burdens on the other members [of society] great enough in sum to outweigh the advantage
Ibid. 212.
Ibid.
241 Ibid.
242 Ibid. 214.
243 Ibid. 218.
239
240
54
gained by the additional member’.244 Even if the others to whom we should do what we are
glad was done to us include potential as well as actual people, in other words, the good that
they might derive from our action (procreation) ‘may be outweighed by harm done to other
actual or potential people.’245 One of Hare’s students has famously pointed out that, even for
a utilitarian, the determination of what is an optimum population is far from straightforward:
we could mean the population size at which the average level of welfare will be as high as
possible, or the population size at which the total amount of welfare, i.e. the average
multiplied by the number of people, is as great as possible.246 Assuming, however, that we do
know how to determine when that optimum is reached, there is, until we have reached it, no
reason on Hare’s analysis (again, leaving aside the predicament faced by S) for limiting
procreation.
By formulating Golden Rule reasoning as he does, Hare avoids committing himself
one way or the other on the question of whether the foetus is a person. We will see soon
that the more obvious way of applying such reasoning to the abortion debate, what we might
broadly call a natural law perspective, must answer this question. Anyone who does adopt
this perspective might wonder whether Hare is engaging in Golden Rule reasoning at all: his
emphasis on ‘gladness’ as a criterion requires us to ask, in the case of the severely impaired
foetus, not ‘how we would want to be treated were we in that position?’ but ‘how should we
treat the foetus given that the child, if born, will probably not be glad to be alive and given
the chances of our having another child who probably will be much gladder to be alive?’
Both questions return us to the philosophical difficulty of imagining ourselves occupying a
position radically different from our own.247 The second question, furthermore, raises at least
two difficulties which do not arise with the first question. From the fact that we are glad that
something was done (or not done) to us, first of all, it does not necessarily follow that we
must consider it impermissible to have done (or not to have done) that thing. A person who
was conceived owing to rape, or whose mother died giving birth having known that her
pregnancy was life-threatening, may be glad not to have been aborted as a foetus yet might
Ibid.
Ibid.
246 See Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984), 381-90.
247 See Leslie A. Mulholland, ‘Autonomy, Extended Sympathy and the Golden Rule’, in Inquiries into Values: The
Inaugural Session of the International Society for Value Inquiry, ed. S. H. Lee (Lewiston, NY: Mellen, 1988), 89-97 at
96-6; George Sher, ‘Hare, Abortion and the Golden Rule’ (1977) 6 Philosophy & Public Affairs 185, 188.
244
245
55
still maintain that his mother should have been allowed the option to seek an abortion.248
Secondly, the second question seems to demand less an exercise in Golden Rule reasoning
than in act utilitarianism.249 Ricoeur, it will be recalled, claimed that Golden Rule reasoning
demands that we reject the utilitarian’s logic of the scapegoat. Yet Hare’s version of the
Golden Rule makes no such demand: a current pregnancy which will result in the birth of a
severely handicapped child might be terminated ‘if … the termination … facilitates or
renders possible or probable the beginning of another more propitious one’.250 Following
this version of the Golden Rule would require a woman to compare terminating what exists
with allowing that existence to continue in the knowledge that doing so might prevent
another child coming into being, as if there is moral equivalence between (1) a woman
intentionally aborting and (2) a woman not conceiving other children owing to the fact that
she has decided to take her current pregnancy to term. But the two instances are different,
primarily because (1) refers to something actual (the foetus in the woman’s womb) and (2)
does not (it refers to what might be the case because of the woman not aborting the foetus
in her womb).251 Hare recognizes the distinction but attaches no significance to it. We should
‘doubt the assumption … that one cannot harm a person by preventing him coming into
existence’ because, though we cannot say that that person has his existence taken away from
him, ‘he is denied’ existence and therefore the enjoyments that come with being alive.252 The
person to whom Hare is referring is denied, however, not existence but rather the chance to
exist; it is not that ‘[w]e do not know who he will be’253 but that we do not know whether he
will be.
See David Boonin-Vail, ‘Against the Golden Rule Argument Against Abortion’ (1997) 14 Jnl of Applied
Philosophy 187, 190.
249 See Antonella Corradini, ‘Goldene Regel, Abtreibung und Pflichten gegenüber möglichen Individuen’ (1994)
48 Zeitschrift für philosophische Forschung 21.
250 Hare, ‘Abortion and the Golden Rule’, 221.
251 For Hare’s own attempt to play down the distinction between actual and logically possible instances, see
Moral Thinking, 113-5.
252 Hare, ‘Abortion and the Golden Rule’, 221. See also R. M. Hare, ‘Abortion: Reply to Brandt’ (1989) 15 Social
Theory & Practice 25, 29-31 where he is concerned primarily with defending the proposition that non-identifiable
people can be harmed rather than with the proposition that terminating an actual pregnancy might be justified
on the basis that not to do so denies possible future ones.
253 Hare, ‘Abortion and the Golden Rule’, 220.
248
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5. Natural law reasoning
Hare, we saw earlier, is not the only philosopher to have tried to salvage the Golden Rule
both from the type of criticism that was directed at it by Kant and from the counterproductive utilitarian defence that we examined. I have criticized Hare’s philosophy,
particularly his attempts to apply the Golden Rule to assistance and abortion problems; I
hope, nevertheless, that these criticisms do not detract from the fact that universal
prescriptivism is a powerful philosophical argument, not only because it makes us question
why, as a matter of moral principle, we should ever tolerate double standards where cases are
relevantly similar but also because it shows that Golden Rule reasoning need not be
connected to particular tastes and preferences. Before concluding I want to consider, if only
sketchily, the treatment of this type of reasoning within another philosophical tradition, the
natural law tradition. I have intimated already that this tradition defends the Golden Rule.
But I also indicated that I want to consider natural law reasoning not alongside other
defences of the Golden Rule but as a discrete topic. There are various reasons for
considering it thus. Whereas the philosophers we have considered so far who defend the
Golden Rule as a principle of moral action are essentially responding to criticisms that came
to the fore during the Enlightenment, natural law arguments in favour of the Golden Rule
are long-standing and tend to be not merely defences of the principle but also efforts to
provide practical guidance concerning how we can live according to it. Natural lawyers,
furthermore, sometimes develop arguments in defence of the Golden Rule which other
defenders of the Rule would reject.
Natural lawyers do not always defend the Golden Rule in the same way. Indeed,
sometimes their positions differ radically. Consider, for example, the argument that the
Golden Rule is itself proof of that there are universally valid natural laws because it is by
following the Rule that we grasp that justice requires: 1) respect for fellow citizens and their
property; 2) ‘treatment of equals equally and unequals unequally’;254 and 3) ‘[a] shared
language’ which, ‘combined with the gift of imagination [Vorstellungsgabe]’, enables us ‘to put
Reiner, ‘Die Goldene Regel und das Naturrecht’, 242. For the same general argument, see Werner Maihofer,
‘Die Natur der Sache’ (1948) 44 Archiv für Rechts- und Sozialphilosophie 145, 167-8.
254
57
ourselves in another’s place.’255 The problem with this argument is that, as we know from the
ground covered already in this study, ‘treat others as you would have them treat you’ does
not – certainly absent serious philosophical elaboration – serve as a principle for
distinguishing between morally right and wrong action.
Augustine showed himself to be wise to this problem in his interpretation of
Matthew 7: 12 (‘All things therefore whatsoever you would that men should do unto you, so
do you also unto them: for this is the law and the prophets’). The train of thought behind
this passage would seem (particularly in light of what Matthew has to say in the immediately
preceding verse) to be that, as God gives good gifts to those who ask Him, so Christians
ought to render to others the service, the good things, that they would want others to render
to them. It seems reasonable to infer that early translators of the Bible may have detected
this train of thought in Matthew 7: 12, for most of the early Latin versions (although not the
Vulgate itself) render the passage: ‘All good things therefore whatsoever you would that men
should do unto you.…’ Augustine believed that Latin translators added ‘good’ to Matthew 7:
12 because it was necessary ‘to clarify the meaning’.256 For, without such clarification, ‘the
thought suggested itself that if someone wished something wicked done to him … and first
practiced this [wicked action] upon the person by whom he wished it to be performed upon
himself’, there could arise a ‘ridiculous’ situation in which an agent would ‘allege this text’ –
whatever things you would have others do to you, so you should do unto them – as
justification for wicked action, as if his action ‘lived up to this prescription’ (i.e., as if the
prescription condoned his behaving in the same wicked way towards others as he would
have them behave towards him).257 The possibility of a person oppressing others in the name
of the Golden Rule was certainly not lost on Augustine in the late fourth century.
Note that the addition of ‘good’ clarifies the meaning of Matthew 7: 12. It does not
change it. ‘[T]he statement is complete and quite perfect even without the addition of this
word’, Augustine continues, ‘[f]or the expression used, “whatsoever you would,” should not
be taken as spoken in a broad, general sense, but with a restricted application: that is to say,
Reiner, ‘Die Goldene Regel und das Naturrecht’, 246. Whatever putting ourselves in the place of another
requires, it does not require that we share a language.
256 St. Augustine, The Lord’s Sermon on the Mount, trans. J. J. Jepson (Westminster, Md.: Newman Press, 1948),
161. Augustine wrote the work c. 393.
257 Ibid. For an interpretation of Matthew 7: 12 (and of Luke 6: 31) which does not invoke Augustine but which
reaches the same conclusion – that the New Testament Golden Rule cannot be read as an endorsement of
oppressive behaviour towards others – see Martin Behnisch, ‘The Golden Rule as an Expression of Jesus’
Preaching’ (1985) 17 Bangalore Theological Forum 83.
255
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the will is present only in the good; in evil and wicked actions cupidity is the word, not
will.’258 Whereas post-Kantian defenders of the Golden Rule have generally tried to show
that there is no necessary connection between our following the Rule and our particular
tastes and preferences, Augustine was of the view that there is a connection but that we must
distinguish the will, i.e., the open-ended (never fully realized) pursuit of the good,259 from
cupidity, i.e., inordinate and unreasonable desire. Following this distinction we might say that
the appellants in R v Brown acted on their desires – they had the desire to participate in
harmful and degrading acts – but not according to will: their actions could not be described,
even the appellants (to echo a point made earlier) could not intelligibly have described those
actions, as good.
In the thirteenth century, Aquinas interpreted the Golden Rule using Augustine’s
distinction.260 But Aquinas also elaborated the notion of human willing. Emphasizing the
relationship between treating others as you wish them to treat you and the neighbour
principle, he recalls Aristotle’s observation that ‘[f]riendly relations with one’s neighbours,
and the marks by which friendships are defined, seem to have proceeded from a man’s
relations to himself.’261 We have encountered already Ricoeur’s version of this claim: esteem
for others, for Ricoeur, is necessary to genuine self-esteem. For Aquinas, similarly, to love
one’s neighbour – to direct our will to the good of others – is to act consistently with one’s
own good.262 The Golden Rule as found at Matthew 7: 12 (even shorn of the word ‘good’)
‘represents a certain rule for loving one’s neighbour’ and so ‘[i]t is, in a certain sense, an
explanation of th[e] commandment’ to love one’s neighbour as oneself.263 So it is – to recall
our critique of Gewirth on this point – that the Golden Rule is not itself what Aquinas
Augustine, The Lord’s Sermon on the Mount, 162. Cf., for a modern variant on the argument, Siegfried Alfons
Lesnik, Die Goldene Regel. Prinzip der neuen Menschlichkeit in Naturrechtlicher und biblischer Auffassung (Gütenberg: selfpublished, 1975), 55 (arguing that within the natural law tradition the Golden Rule is connected with the
principle, ‘do good and avoid evil’ [‘Tue das Gute und meide das Böse’]).
259 See Augustine, The Lord’s Sermon on the Mount, 163-4 (The follower of the Golden Rule, ‘in order that his
works be truly good, does not seek the pleasure of his fellow men as the purpose of his good works….
[W]hatever service he renders to another he renders it with the intention he would like manifested towards
himself, that is, of not expecting any temporal favor from him’).
260 See Thomas Aquinas, Super Evangelium S. Matthaei lectura, 5th ed. P. R. Cai (Turin: Marietti, 1951 [1269-70]),
VII. 6, remark 648 (on Matthew 7: 12 and Matthew 6: 12).
261 Nicomachean Ethics, IX. 4. 1166a 1-3.
262 See Finnis, Aquinas, 127-8.
263 Thomas Aquinas, Summa Theologiae. Vol. 29: The Old Law (1a2ae. 98-105), trans. R. J. Batten (New York:
McGraw Hill, 1969[1271]), 35 (1a2ae. q.99, art. 1, response to objection 3).
258
59
understands to be the master principle of morality (love of neighbour as oneself) but rather a
means by which we can bring specificity to that principle.
On this interpretation of the Golden Rule, then, to do (good) to others is to do
(good) to oneself. The general point is one of the most important to be drawn from the
natural law tradition: that our choices are constitutive of ourselves, they pertain to our
reason.264 The reason the bystander cannot reasonably be asked to end the life of the lorry
driver – to recall Hare’s striking euthanasia dilemma – is that to do so would be to ask him
to make a choice which would radically alter, almost certainly for the worse, his
understanding of his self. The choices we freely make have an impact on and (unless or until
we make an incompatible choice) persist in our character. The choice to harm others – this
must be one of the most enduring themes of literature and art – is, even when made with
good intentions, a self-disintegrative choice, a choice which tends to eat at us, to lessen us in
our own eyes (let alone the eyes of others), to make us, as Socrates put it, miserable as well
as pitiable.265 Aquinas fully understood that this argument raises the problem of
indiscriminate regard: if the Golden Rule is a standard which enables us to instantiate the
general notion of loving our neighbours as ourselves, what room is there, if indeed there is
any room, for preferring to do good for some and not for others? The physical remoteness
of some ‘neighbours’ – obviously more of a problem in the thirteenth century than it is
today – means that there is nothing one can do (beyond prayer) to seek to benefit them.266
And so while every human being, for Aquinas, is our neighbour, we have to be realistic
about the limits of our capacity to make an impact on the lives of others.
Of course we should also be realistic – leaving aside the issue of physical remoteness
– about our general willingness to prefer to attend to the welfare of ourselves, our families
and our friends over and above others. Does it make sense to speak of Golden Rule
reasoning as impartial if treating others as we would have them treat us – i.e., bringing
Here is not the place to differentiate choice from preference and to explain how both choices and
preferences can be decisions. Crudely speaking, the point is that whereas to prefer is to opt for that which has
the greatest utilitarian appeal, to choose is to opt for that which is consistent with one’s will but not necessarily or
convincingly supported by utilitarian reasoning. A fundamental fault with, say, neoclassical economics as
applied to law is that it makes no distinction between those instances in which we can identify one option as
the correct option and more open-ended instances – whether or not to marry or have children are obvious
examples – where we know that the choice that we make could bring heartbreak as well as happiness but is
nonetheless not meaningfully reducible to any sort of cost-benefit calculation simply because the choice we
make seems, at the time that we make it, to be the right choice for us.
265 Plato, Gorgias, 469b.
266 See Finnis, Aquinas, 126 n 112; ‘Natural Law and the Re-making of Boundaries’, 174, 177 n 4.
264
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specificity to the neighbour principle – can involve preferring to treat some but not others as
we would be treated? Modern natural lawyers building on Aquinas’s philosophy have not
shied away from this problem, although it is impossible here to do anything more than
sketch what I think is the most convincing treatment of it.267 The beginning of the sketch
will be recognizable to almost anyone who has studied legal philosophy. Moral norms –
prohibitions on killing, theft, acts of dishonesty and deception, requirements that promises
be kept, and other similar negative and positive precepts the capricious contravention of
which anyone would consider immoral – identify and render intelligible certain basic (selfevident, irreducible) goods which we instantiate (make actual), through intelligent choice and
action.268 These goods – the goods of human life itself, truth, aesthetic experience,
friendship, skilful work and play, religion (agnostically defined) and practical
reasonableness269 – are basic in the sense that, unlike many goods, they are reasons for acting
For an account of the modern history and development of the natural law with which I am concerned here,
see Nicholas C. Bamforth and David A. J. Richards, Patriarchal Religion, Sexuality, and Gender: A Critique of New
Natural Law (Cambridge: Cambridge UP, 2008), 56-92. Bamforth and Richards offer this account by way of
prelude to a detailed critique of modern natural law, their principal complaint being that modern natural
lawyers, contrary to their own claims, advance arguments which are essentially religious in character and which
presuppose a commitment to particular religious beliefs and teachings. An assessment of this critique is beyond
the scope of this essay, though I would say at the very least that the authors might have done more justice to
the ways in which modern natural lawyers have sought to uncover, revise and replace indefensible natural law
and religious claims: see, e.g., Finnis, Natural Law and Natural Rights, 48 (‘the argument … that human faculties
are never to diverted (‘perverted’) from their natural ends … is ridiculous’), 55 (note to II.7).
268 See John Finnis, Moral Absolutes: Tradition, Revision, and Truth (Washington, DC: Catholic University of
America Press, 1991), 41-2. See also John Finnis, ‘Natural Law and Unnatural Acts’ (1970) 11 Heythrop Jnl. 365,
366 (‘Natural law … is one’s permanent dynamic orientation towards an understanding grasp of the goods that
can be realized by free choice, together with a bias … towards actually making choices that are intelligibly
(because intelligently) related to the goods which are understood to be attainable, or at stake, in one’s situation.
Now the jargon-laden sentence just uttered is a piece of speculation, theorizing, doctrine about natural law. But
the point of all such theorizing can be little more than to uncover what is already available to everyone,
submerged and confused, perhaps, but shaping everyone’s practical attitudes and choices of what to do, what
to love and what to respect’); also ‘Law, Morality, and “Sexual Orientation”’ (1994) 69 Notre Dame L. Rev. 1049,
1065.
269 Being practically reasonable means adopting a coherent plan of life, having no arbitrary preferences among
values and persons, maintaining detachment from projects, not abandoning commitments lightly, eschewing
inefficient methods, not making choices which serve only to damage the realization of other basic goods, fostering
‘the common good’ of one’s community and acting according to one’s conscience. See Finnis, Natural Law and
Natural Rights, 100-26. There is no exhaustive list of, or definitive terminology for, the basic goods. The bestknown modern effort at articulation – certainly the one best known to lawyers – is Finnis, ibid., 85-90. The list
omits (though hints at the possibility of – see ibid. 86-7) marriage as a basic good. In later works, Finnis has
added it: see, e.g., John Finnis, ‘Is Natural Law Theory Compatible with Limited Government?’, in Natural Law,
Liberalism and Morality, ed. R. P. George (Oxford: Oxford UP, 1996), 1-26 at 4; also ‘Professor John Finnis’s
Observations for the Austral Conference to Mark the 25th Anniversary of Natural Law and Natural Rights’ (2006)
13 Cuadernos de Extensión Jurídica (Universidad de los Andes) 27, 28. Although, as will become clear in due course, I
am largely sympathetic towards Finnis’s argument concerning basic human goods, I am not convinced that
marriage belongs to the list. While basic goods are in principle open to pursuit by all, marriage, for Finnis, is by
definition heterosexual: a same-sex partnership ‘may, in some circumstances, be a praiseworthy commitment’,
267
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which require no further reason.270 They need no demonstration, are desirable for their own
sake – are intrinsically rather than instrumentally good – and presuppose no moral
judgements.271 But they ‘are not mere abstractions’; rather, ‘they are aspects of the real wellbeing of flesh-and-blood individuals.’272 By examining human volition – our choices to act, or
not to act, according to moral norms – we come to understand these basic goods as integral
to human fulfillment. Indeed, it is by making choices compatible with these basic goods, by
being practically reasonable, that we contribute to ‘the ideal of human fulfillment’ – i.e., to
‘the realization, so far possible, of all the basic goods in all persons, living together in
complete harmony’.273 And it is by making choices incompatible with these goods – by
failing to use reason to fetter our urges and impulses – that we do the opposite.274
Although it is in the character of basic goods that they are integral to human
fulfilment, they are not integral to the fulfilment of the needs and interests of particular
persons. ‘[T]he basic goods are human goods, and can in principle be pursued, realized, and
participated in by any human being.’275 The Golden Rule can therefore be understood to be
but it ‘has nothing to do with marriage.’ John Finnis, ‘The Good of Marriage and the Morality of Sexual
Relations: Some Philosophical and Historical Observations’ (1997) 42 Am. J. Juris. 97, 132. Finnis acknowledges
that some people are ‘exclusively and irreversibly homosexual’ (ibid. 123), and argues it is not the natural
inclinations of these people that is contrary to the good of marriage, but their choice to act on these
inclinations: see, e.g., John Finnis, ‘“An Intrinsically Disordered Inclination”’, in Same-Sex Attraction: A Parents’
Guide, ed. J. F. Harvey & G. V. Bradley (South Bend, In.: St. Augustine’s Press, 2003), 89-99 at 90-1. These
inclinations, however, deny them both the faculty and the competence (in contrast to those, such as children,
who have the faculty but lack the competence) to be committed to marriage as a basic good. In short, I cannot
see how marriage can be a basic good meant for everyone.
Non-marital sexual acts by definition involve a choice against marriage as a basic good: to respect
‘willingness to engage in and promote homosexual conduct … or anybody’s willingness to engage in any other
form of non-marital sex acts, is to endorse an important falsehood about what is good for human persons, and
to make a contribution towards the collapse of marriage as a civic institution and personal reality, and so to do
one’s bit to harm, unjustly, all the people who will suffer as children and therefore also as adults by being raised
in more or less non-marital environments’. John Finnis, ‘Virtue and the Constitution of the United States’
(2001) 69 Fordham L. Rev. 1595, 1598. I do not understand why all non-marital sexual acts should be
understood thus. Adultery is clearly inconsistent with and injurious to genuine marital commitment. But it is
not clear why the same should be said of, say, solitary masturbation (for Finnis, all non-marital sexual acts are
essentially masturbatory) – even if it is conceded that solitary masturbation may be a self-disintegrative act, and
that it does not actually contribute to the fulfillment of genuine marriage – or why respecting the willingness of
others to engage in masturbation ‘is to make a contribution towards the collapse of marriage’.
270 For example: a hungry person eats to avoid starvation. The good here (not starving) is the reason for the action
(eating). But there is a reason which explains our interest in that good: ie, we want to avoid starving because we
want to live – we value life (self-preservation) as a basic good.
271 See, e.g., Finnis, Natural Law and Natural Rights, 59, 73.
272 Finnis, Natural Law and Natural Rights, 225.
273 Germain Grisez, Joseph Boyle and John Finnis, ‘Practical Principles, Moral Truth, and Ultimate Ends’
(1987) 32 Am. J. Juris. 99, 131.
274 See Finnis, Moral Absolutes, 41-4.
275 Ibid. 106.
62
impartial in the sense that the basic human goods which provide reasons for action,
including following the Golden Rule, are agent-neutral: there is ‘fundamental impartiality
among the human subjects who are or may be partakers of those goods.’276 There is no
incompatibility between speaking of the Golden Rule as impartial in this sense, modern
natural lawyers argue, and treating different people differently. All that the Golden Rule
requires is that differential treatment be justified because of inevitable limits on one’s action
– that my failure to treat another as I would have him treat me is explicable by the fact that
circumstances make it impossible for me to treat him thus – or because failing to treat
different people differently would mean acting contrary to the requirements of the basic
goods themselves: because it would mean acting dishonestly, for example, or neglecting the
needs of one’s dependents.277 Since the basic goods are agent-neutral, since my good is no
better or worse than yours, such differentiation by reference to basic human goods is not the
same as applying the Golden Rule by reference to one’s tastes or preferences: ‘we are
showing no improper favour to individuals as such, … no egoistic or group bias, no
partiality’.278 Applying the Golden Rule does not mean ignoring one’s feelings. Quite the
opposite: it requires the discernment of one’s feelings – in determining whether to act in any
particular instance, one relies on intuitions regarding how great a burden one can accept and
what benefits one thinks one’s actions will bring (what modern natural lawyers sometimes
refer to as ‘pre-moral commensuration’279). These intuitive feelings are the feelings of ‘the
mature person of fully reasonable character’280 whose ‘deliberation and action is open to and
in line with integral human fulfillment’,281 and so genuinely to apply the Golden Rule must
also mean assessing, sometimes instantaneously, our feelings about our options – about what
we can do – in accordance with ‘a rational and objective standard of inter-personal
Ibid. 107; and see also Mark C. Murphy, Natural Law and Practical Rationality (Cambridge: Cambridge UP,
2001), 201-4; ‘Natural Law, Impartialism, and Others’ Good’ (1996) 60 Thomist 53.
277 See, e.g., Grisez, The Way of the Lord Jesus. Vol. 1, 211-2; Finnis, ‘Natural Law and Legal Reasoning’, 137-8;
Finnis, ‘Commensuration and Public Reason’, 227; ‘Natural Law: The Classical Tradition’, 29-30.
278 Finnis, Natural Law and Natural Rights, 109, and see also 304 (‘One has no general responsibility to give the
well-being of other people as much care and concern as one gives one’s own; the good of others is as really
good as one’s own, but is not one’s primary responsibility, and to give one’s own priority is not, as such, to
violate the requirement of impartiality’).
279 See, e.g., John Finnis, Joseph Boyle and Germain Grisez, Nuclear Deterrence, Morality and Realism (Oxford:
Clarendon Press, 1987), 265-6; Finnis, ‘Natural Law and Legal Reasoning’, 149. See also Finnis, Moral Absolutes,
81-2; ‘Allocating Risks and Suffering: Some Hidden Traps’ (1990) 38 Cleveland State L. Rev. 193, 206.
280 Finnis, ‘Commensuration and Public Reason’, 228.
281 Ibid. 227.
276
63
impartiality’,282 that is, in accordance with the requirements of the basic goods which provide
reasons for action. The standards of fully reasonable conduct, we might say, are to be
measured by ‘[t]he ideal of integral human fulfillment’.283
This natural law defence of the Golden Rule differs radically from the other defences
that we have encountered. It candidly acknowledges that when we follow the Golden Rule,
what we feel cannot be insignificant. The natural law account shows that feelings have a
legitimate part to play in our efforts to accord fair treatment, that our preliminary intuitions
concerning how to treat others must – since we are trying to be fair – be measured by the
requirements of the basic goods which delimit the range of reasonable action. I have – and I
expect this will confirm most readers’ suspicions – presented various accounts of Golden
Rule reasoning in what I consider to be an ascending order of credibility. This particular
natural law defence of the Golden Rule is the most cogent of the various defences
considered here, I think, not only because of the intelligibility of the premiss (the selfevidence of basic goods) and the reasoning but also because it eschews the artificial
assumption either that the Golden Rule can somehow be divorced from the feelings of
agents and recipients or that any such feeling, if it must be taken into account (recall Hare’s
formulation of the Golden Rule as ‘we should do to others what we are glad was done to us’),
can be satisfactorily subjected to some sort of proportionalist – typically, utilitarian –
rationalization.
6. Concluding reflections
There is something to be said for ending this essay here – on a somewhat bullish note. But
to do so would, I think, be to sidestep some difficult questions. I want to conclude by
considering just one of them. Mid-way through this essay I briefly entertained the notion of
the Golden Rule as a ‘neutral principle’, a notion which some lawyers might argue I should
have dwelt on for longer, not only because it might have put this entire inquiry on firmer
ground but also because it would most likely lead to an examination of what it could ever
mean to speak of the Golden Rule as a legal standard. To put the question in a leading way: if
Golden Rule reasoning – informed by goods which are essential to human fulfillment and
282
283
Finnis, ‘Natural Law and Legal Reasoning’, 149.
Finnis, ‘Commensuration and Public Reason’, 233.
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flourishing – essentially requires that we do good to, and avoid actions which offend against
the good of, others, how can it make for anything other than legal norms which are morally
uncontroversial but wholly vacuous?
The first, minor, point to make in response to such a question is that law often
facilitates Golden Rule reasoning. Determining the relevantly similar instances in which I
would want others to treat me as I propose to treat them may require that I consider current
legal rules and precedents. Law understood thus is essentially an exercise in purposive or
technical rather than moral reasoning, a means for agreeing or resolving our disputes over
what we can do in our interactions with others.284 The second, far more important point to
make stems from Michael Sandel’s observation (Sandel himself is following Aquinas) that
liberal justice does not demand neutrality as between conceptions of what makes for a good
life or a refusal to pass judgement on the moral worth of particular human activities.285 None
of us can completely separate our deliberations about political morality from our personal
convictions, and so when we support particular public decisions and policies we are (unless
we are being hypocritical) supporting decisions and policies that are consistent with our
private values and ideals.286 Certainly liberalism entails public justification – constructive
negotiation among people who share a basic commitment to particular values and ideals, and
the filtering out or domestication of values and ideals which are not shared – but public
justification does not require that equal moral weight be accorded to everybody’s values and
ideals.287 Likewise following the Golden Rule, understood as a choice based on reasons for
action which ought to be accepted because of their intrinsic goodness – because their
soundness or validity as reasons for action cannot be explained by appealing to other reasons
– requires that we judge some actions and ways of life, though not people,288 to be morally
preferable to others. And so when natural lawyers refer to the Golden Rule their point
usually289 is that to follow the Rule is to choose – or that to violate the Rule is to impede – a
See Finnis, ‘Natural Law and Legal Reasoning’, 142; ‘Natural Law: The Classical Tradition’, 10.
See Michael J. Sandel, ‘Judgemental Toleration’, in Natural Law, Liberalism and Morality, 107-112.
286 See Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford:
Clarendon Press, 1991), 59-64.
287 See ibid. 261-2.
288 See n 181, above.
289 Though not always: a moral right derived from Golden Rule reasoning might sometimes be matched or
eclipsed by some other moral consideration. So, for example, following the Golden Rule requires us not to
exchange money for friendship (by stealing, say, or borrowing without repaying ) – we wouldn’t want our
friends to do this to us – yet there might be a countervailing moral responsibility to take and use our friends’
money for good purposes (for example, the student who takes money out of a collective house-fund to pay an
284
285
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course of action compatible with the realization of basic human good(s). Examples would be
arguments to the effect that treating others as we would have them treat us requires us to be
truthful to others (though not necessarily that we divulge secrets),290 to be mindful of the
needs of others when we use resources291 and to be willing, having benefited from our
predecessors’ shouldering of burdens, to shoulder those burdens for the benefit of those
who will succeed us when the time comes for us to do so292; likewise arguments to the effect
that the Golden Rule can justify conscientious objection, whistleblowing, breaking from a
prior undertaking and refusing to locate one’s business (even though it may be legally
permissible to locate one’s business) in a country where, say, employees are paid below the
minimum wage guaranteed in one’s own country.293 Many legal norms will be supported by
the natural law version of the Golden Rule, but many will not be; indeed, to reiterate the
more general point made in the introduction to this essay, many accepted legal positions will
not be supported by Golden Rule reasoning.
There is, of course, no reason to think that all legal norms supported by the Golden
Rule – certainly the natural law version of the Golden Rule outlined here – will be
uncontroversial. As an illustration of the point, and by way of conclusion, consider again the
subject of abortion. The natural law application of the Golden Rule to the abortion problem
is much more straightforward than the argument advanced by Hare. But because the natural
law version of the Rule is more straightforward – the conventional ‘do to others as we would
have them do to us’ rather than Hare’s unconventional ‘do to others what we are glad was
done to us’ – the resulting argument cannot be framed, as Hare’s is framed, as if it were
essentially about what we are glad we became. The argument has to address what Hare was
at pains to sidestep: the status of the foetus. If we apply the Golden Rule to this problem,
the answer it yields is obvious enough: we should treat others as we would have others treat
us, and so if we would have others abstain from actions intended to end our lives (as distinct
from instances of double effect, where death is a foreseen side-effect of an action intended
to serve human good), we should not perform such actions on others. But how are we to
engineer to repair the central heating, even though the rest of his flat-mates had wanted to spend the money on
nights out). See Finnis, ‘Commensuration and Public Reason’, 232.
290 See Grisez, The Way of the Lord Jesus. Vol. 2, 410-11, 417.
291 See Germain Grisez, The Way of the Lord Jesus. Vol. 3: Difficult Moral Questions (Quincy, Ill.: Franciscan Press,
1997), 438
292 See Finnis, ‘Commensuration and Public Reason’, 228; also ‘Natural Law: The Classical Tradition’, 51-2.
293 See Grisez, The Way of the Lord Jesus. Vol. 2, 322, 760-1; The Way of the Lord Jesus. Vol. 3, 463, 559.
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interpret ‘others’? The answer is obviously crucial, because as soon as we are dealing with
others we are, according to the Golden Rule, dealing with entities to be subjected to the
same standards and principles of treatment as we would have applied to us. John Rawls, in
his last works on public reason, argues that justifying political decisions in a way that is
reasonably acceptable to everyone essentially means demonstrating ourselves to be sincere
practitioners of the Golden Rule: being prepared, that is, not only to offer fair standards of
treatment to others but also agreeing to act according to those standards even when doing so
would be contrary to our own interests.294 This system of citizenship, he continues, is one
‘we enter only by birth and exit only by death’.295 It would be easier to dismiss this last
remark as casual were Rawls not reiterating it.296 Committed will theorists argue that claims
must be enforceable (or waivable) by claim-holders themselves if the claims are to count as
rights. But Rawls’s remark provides a vivid illustration of why we do better to speak of rights
protecting interests, including interests ascribed to those who, for whatever reason, cannot
make a case for themselves. If there could be no right to be treated according to the Golden
Rule until birth, no reasonably-minded supporter, let alone opponents, of a right to abortion
would consider the range of protections guaranteed to the unborn to be sufficient.297
Of course, accepting that it is not the fact of birth that makes us persons does not
answer but simply returns us to the question of what it means to refer to ‘others’ in this
context. The argument I want to consider proceeds from the premiss that life begins at
conception because the conceptus (the fertilized human egg) marks the beginning of our
selves – because my personal genetic constitution, the integral organism that I am (and will
be until I die), can be traced to that point298 – and so we are all ‘others’, entitled to the same
moral consideration, from that point onwards. Ronald Dworkin is somewhat dismissive of
294 See John Rawls, ‘The Idea of Public Reason Revisited’ (1997) 64 Univ. Chicago L. Rev. 765, 770, 771;
‘Introduction to the Paperback Edition’, in Political Liberalism, expanded ed. (New York: Columbia UP, 1996),
xxxv-lx at xlii, xliv.
295 ‘Introduction to the Paperback Edition’, in Political Liberalism, xliii.
296 See John Rawls, Political Liberalism, 12 (‘[T]he basic structure is that of a closed society…. Its members enter
it only by birth and leave it only by death’).
297 ‘[T]he question arises why Rawls draws the boundary of justice, fairness and reciprocity at birth. This
question does not seek to settle the rights of the mother over and against the unborn child. It is just the
question of how it could be rational to think that the child just before birth has no rights (no status in justice,
fairness, reciprocity) while the child just after birth has the rights of a citizen free and equal to other citizens.’
John Finnis, ‘Public Reason, Abortion, and Cloning’ (1998) 32 Valparaiso Univ. L. Rev. 361, 372-3.
298 See John Finnis, ‘The Rights and Wrongs of Abortion’, in The Philosophy of Law, ed. Dworkin, 129-152 at
151-2; ‘“The Thing I Am”: Personal Identity in Aquinas and Shakespeare’ (2005) 22 Social Philosophy & Policy
250, 276.
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the premiss; it appears to inform ‘the scalding rhetoric of the “pro-life” movement’, he
observes, ‘[b]ut very few people – even those who belong to the most vehemently antiabortion groups – actually believe [in it], whatever they say.’299 A former colleague of
Dworkin’s is very clearly committed to the premiss. If one accepts that abortion is
deliberately killing the unborn, John Finnis argues, and that deliberate killing is wrong, then
abortion is a denial of the unborn’s right to the equal protection of the laws against
homicide.300 The unborn are others, and since the Golden Rule requires that we treat others
as we would have them treat us, the unborn should have the same right not to be
intentionally and unjustly killed as the rest of us. Just how far the unborn is from birth is
irrelevant: we might deny that the early human embryo has the status of an other, a person,
[b]ut the denial is quite vain. You only have to scrutinize the language, the thoughts, the
awareness and the decisions of those who want their baby to survive and flourish, and of
those who use their skills for that objective, to see that when people’s interests do not
conflict with the interests of the embryo, they are perfectly well aware that they are dealing
with an individual human being, a him or a her, a subject, a who not a what, as irreplaceable
as a baby immediately before or after birth.301
Even if we acknowledge the legitimacy of this argument, Judith Jarvis Thomson
argues – even if, that is, we concede that there is no way of refuting once and for all the
claim that fertilized eggs have a right to life – this does not mean we must accept the
argument that there is a ‘conclusive reason for asserting that they do have a right to life’.302 If
we are open-minded, and accept that it is reasonable to argue either that the foetus does or
that it does not have a right to life from the moment of conception, we ought to concede the
permissibility of abortion, because ‘if abortion rights are denied’ then this constraint is
imposed on a ground that those who favour abortion rights – the constrained, as it were –
‘are not in the least unreasonable in rejecting outright’.303 If the reasons for the constraint
against abortion are no more compelling than the reasons against such constraint, so that the
case against abortion is not one that the constrained are unreasonable in rejecting,
299
13.
Ronald Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia (London: HarperCollins, 1993),
See Finnis, ‘Is Natural Law Theory Compatible with Limited Government?’, 17-18.
John Finnis, ‘Some Fundamental Evils in Generating Human Embryos by Cloning’, in Ethics and Law in
Biological Research, ed. C. M. Mazzoni (The Hague: Nijhoff, 2002), 99-106 at 102.
302 Judith Jarvis Thomson, ‘Abortion’ (1995) 20 Boston Rev. 11, 13.
303 Ibid. 14.
300
301
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constraining abortion would be wrong since it would mean that anti-abortionists had got
their way for no other reason than that they had asserted that they are right.304
But why, if this argument reaches stalemate, should the law take the side of those
who deny that the foetus has a right to life from the moment of conception: ‘why should the
deniers win?’305 Because, Thomson responds, ‘the situation is not symmetrical’.306 The
justificatory burden should always fall on those who wish who wish to see the law changed
so that it interferes with personal choice. There is no reason to think this justificatory burden
will never be met: there was a time when a primary reason for outlawing abortions was that
the procedure could not be performed without serious risk to a woman’s health. There is
also no reason to think that those who seek legal change will always be those who oppose a
right to abortion. Within a jurisdiction the established position in law might be that abortion
is not permitted: this was essentially the case in the United States until the Supreme Court
overturned prior state and federal laws barring abortion by deciding that a woman’s choice
to seek a termination is (until the point of viability) constitutionally protected.307 And it is
difficult to imagine any opponent of abortion not pointing out that the freedom they wish to
see curtailed is the freedom to commit a grave harm, to kill the unborn. Thomson herself
seems to concede the point when she observes that there is no conclusive reason for denying
that fertilized eggs have a right to life – that it makes ‘perfectly good sense’, to use her
phrase, to speak of the unborn having a right, in the same way that we all have a right, not to
be intentionally and unjustly killed.308 Since it cannot be demonstrated that the unborn have a
right to life, Thomson argues, those who object to abortion must meet the burden of
showing why outlawing abortion is objectionable. But those who consider abortion
objectionable will in all likelihood claim that the burden is dispensed with by virtue of the
fact that Thomson leaves their central claim – that abortion is murder – uncontested.
‘On many topics the views of reasonable men are poles apart’, Lord Reid once
observed, yet ‘[w]hen we come to how a man should behave towards his neighbour there are
no such deep cleavages’, even if ‘there is room for some difference of opinion’.309 With the
topic of abortion the possibility of deep cleavages, of finding one another poles apart, is
Ibid.
Ibid.
306 Ibid. 15.
307 See Roe v Wade, 410 U.S. 113 (1973).
308 Thomson, ‘Abortion’, 13.
309 Lord Reid, ‘Law and the Reasonable Man’ (1968) 54 Proc. Brit. Acad. 189, 201.
304
305
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obvious and real. There is no guarantee that Golden Rule reasoning will close this gap. The
Golden Rule might support the adoption of a position very different from that which many
people take on a controversial issue like abortion, and might even show that their reasons for
holding the view that they hold are weak. This does not mean that they will necessarily
abandon their intuitions or change their views; indeed, it is worth bearing in mind the maxim
(of unknown provenance, though regularly misattributed to Jonathan Swift) that it is futile to
try to reason people out of positions they were never reasoned into. But when we are
making legal decisions we ought to be guided by the strongest reasons rather than the most
prevalent or oft-voiced intuitions. Golden Rule reasoning is exemplified neither by
arguments which treat the Rule as connected to the desires of specific agents and recipients
nor by arguments which fail to disprove this connection but rather by universal
prescriptivism and, especially, by natural law philosophy. Whether Golden Rule reasoning
within the natural law tradition is the strongest available reasoning on an issue such as
abortion I cannot be sure. But it does require that we decide who our neighbours are and
how to accord them reasonable and impartial – fair – treatment. And even if it demands
conclusions which we do not consider our own, it might force us to think again about the
reasonableness of the positions that we do hold, and about our grounds for dismissing some
of those that we reject.
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